                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00413-CR

ALTON LEON YORK,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                           Trial Court No. 2011-40-C2


                         MEMORANDUM OPINION


      Alton Leon York was indicted on nine counts of aggravated sexual assault of a

child and three counts of indecency with a child. The jury convicted York on all twelve

counts.   In Counts I through IV and VIII through XII, the jury convicted York of

aggravated sexual assault of a child and assessed his punishment at life in prison. In

Counts V through VII, the jury convicted York of indecency with a child and assessed

his punishment at twenty years confinement. The trial court ordered the sentences in
Counts I through IV to run concurrently, and the sentences in Counts V through XII to

run consecutively. We modify the judgments, and affirm as modified.

                                     Background Facts

        York does not challenge the sufficiency of the evidence to support his

convictions. Therefore, we will set out only a brief summary of the facts. C.Y. is the

biological daughter of York. She was twenty-three years old at the time of trial. She

testified that she was six years old when York started “messing” with her and that it

continued until she was thirteen. C.Y. testified that York would put his mouth on her

genitals or have her put her mouth on his genitals. C.Y. stated that York would also rub

his genitals against her genitals and that he put his finger inside of her genitals. C.Y.

said that on one occasion her mother saw her with York’s genitals in her mouth. C.Y.

said that her mother told her not to tell anyone. C.Y. testified that for several years she

had sex with York at least once a day.

                                 Admission of Testimony

        In the first issue, York complains that the trial court erred in allowing the State to

ask an expert witness whether she believed C.Y.’s allegations of sexual abuse to be true

or false. We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). "Under an

abuse of discretion standard, an appellate court should not disturb the trial court's

decision if the ruling was within the zone of reasonable disagreement." Bigon v. State,

252 S.W.3d 360, 367 (Tex. Crim. App. 2008).




York v. State                                                                           Page 2
        Detective Kimberly Clark is with the Crimes Against Children Unit of the Waco

Police Department. She testified at trial that she has worked on 450 cases involving

sexual abuse of children. Detective Clark further testified that she has been trained in

dealing with false allegations of sexual abuse and that she has encountered cases that

she believed involved false allegations. The State then asked, “in those cases you

wouldn’t proceed to an arrest; is that right?” York objected that the State was bolstering

the case. The State responded that the question was asking about Detective Clark’s

experience. The trial court overruled the objection; however, Detective Clark never

answered the question on whether she proceeds to arrest in cases that she believes

involve a false allegation.

        A direct opinion on the truthfulness of the child, from either a lay witness or an

expert witness, is inadmissible.     Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim.

App.1993); Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Detective Clark did

not give a direct opinion on the truthfulness of C.Y. We overrule the first issue.

                                       Jury Charge

        In the second issue, York contends that the trial court erred in including the

culpable mental state of “knowingly” in the application paragraph of the jury charge as

to Counts V through VII on indecency with a child. The application portion of the

charge in Count V stated:

        Now, if you find from the evidence beyond a reasonable doubt that …
        [York] did then and there, with the intent to arouse or gratify the sexual
        desire of said Defendant, intentionally or knowingly cause [C.Y.], to
        engage in sexual contact by causing the said [C.Y.] to touch the genitals of
        said Defendant, and at the time, [C.Y.] was a child younger than seventeen

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        (17) years of age and not the spouse of the Defendant, then you will find
        the Defendant guilty of the offense of Indecency with a Child by Contact,
        as charged in Count V of the indictment.

The charge used the same language of “intentionally or knowingly” in Counts VI and

VII, but with different means of committing the offense.

        The mens rea to prove indecency with a child by contact is acting with the intent

to gratify a person’s sexual desire. Bazanes v. State, 310 S.W.3d 32, 36 (Tex. App.─Fort

Worth 2010, pet. ref’d). The application paragraph of the charge also required a finding

that York intentionally or knowingly engaged in the sexual contact. The Court in

Bazanes found listing the culpable mental states of knowingly and intentionally with the

specific intent necessary to complete the crime to be charge error. Bazanes v. State, 310

S.W.3d at 37.

        York did not object to the charge at trial. Therefore, he must show egregious

harm to prevail on appeal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

An egregious harm determination must be based on a finding of actual rather than

theoretical harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). For actual

harm to be established, the charge error must have affected the very basis of the case,

deprived the defendant of a valuable right, or vitally affect a defensive theory. Id.

When assessing harm based on the particular facts of the case, we consider: (1) the

charge; (2) the state of the evidence including contested issues and the weight of the

probative evidence; (3) the parties' arguments; and (4) all other relevant information in

the record. Id.



York v. State                                                                       Page 4
        The charge accurately instructed the jury that it must find York acted with the

specific intent to arouse or gratify his sexual desire. Within the context of the entire jury

charge, the erroneous application paragraph appears less harmful. See Bazanes v. State,

310 S.W.3d at 37. C.Y.’s credibility was the contested issue at trial, not York’s intent.

The State did not highlight or emphasize York’s intent to obtain a conviction. The

parties did not address York’s intent during closing arguments. York does not state in

his brief how he was egregiously harmed by the charge. We find that York did not

suffer egregious harm from the charge. We overrule the second issue.

                                  Consecutive Sentences

        In his third issue, York argues that both the ex post facto doctrine and the rule of

lenity prevent the trial court from ordering that the sentences in Counts V through XII

run consecutively. In the fourth issue, York argues that the cumulative sentences run

violate the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000).

        Texas trial courts have the discretion to order cumulative sentences in virtually

every case. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2011); Millslagle v.

State, 150 S.W.3d 781, 784 (Tex. App.─Austin 2004, pet dism’d untimely filed).

However, when multiple offenses arising out of the same criminal episode are

consolidated for a single trial, and the defendant is found guilty of more than one

offense, TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2011) provides a limit on the trial

court's discretion to cumulate the sentences.      Millslagle v. State, 150 S.W.3d at 784.

Section 3.03(b)(2)(A) creates an exception to this exception; that is, it exempts certain



York v. State                                                                          Page 5
offenses, including indecency with a child and aggravated sexual assault of a child,

from the application of Section 3.03(a). Id.

        Until 1995, Section 3.03 required sentences for multiple offenses prosecuted in a

single trial to run concurrently.         DeLeon v. State, 294 S.W.3d 742, 745 (Tex.

App.─Amarillo 2009, pet. ref’d). In that year, the legislature amended Section 3.03 to

restore the trial court's discretion to impose consecutive sentences for multiple

intoxication manslaughter convictions resulting from a single trial. Act of May 26, 1995,

74th Leg., R.S., ch. 596, § 1, 3435, 3435; DeLeon v. State, 294 S.W.3d at 745. In 1997, the

legislature further amended Section 3.03 to add some sexual offenses committed against

a victim younger than seventeen to the list of offenses subject to consecutive sentencing

when there are multiple convictions in a single trial. Those offenses include indecency

with a child, sexual assault, and aggravated sexual assault. Act of May 31, 1997, 75th

Leg., R.S., ch. 667, § 2, 2250, 2251; DeLeon v. State, 294 S.W.3d at 745. Those amendments

went in effect September 1, 1997, and applied to offenses committed on or after the

effective date of the Act. Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 2252, 2253.

        C.Y. was born October 1, 1988. She testified that the abuse began when she was

six years old and ended when she was thirteen. Therefore, the offenses would have

been committed from 1994 through 2001. The indictment alleges in Counts I through IV

that the offenses occurred on or about dates in 1996. The indictment alleges in Counts V

through XII that the offenses occurred on or about dates in 1998 and 1999. The jury

found York guilty of the offenses of indecency with a child by contact and aggravated

sexual assault of a child as charged in the indictment. The trial court ordered the

York v. State                                                                           Page 6
sentences in Counts I through IV, committed before the 1997 effective date of the

amendment to Section 3.03, to run concurrently. The trial court ordered the sentences

in Counts V through XII, committed after 1997, to run consecutively.

          York argues that the based upon the testimony of C.Y., the jury could have found

that all twelve offenses occurred before the 1997 effective date of the amendments.

Therefore, York contends that the sentences should all run concurrently. In DeLeon, the

defendant was prosecuted for offenses during a criminal episode spanning eight years

and comprising aggravated sexual assault, sexual assault, and indecency with a child.

DeLeon v. State, 294 S.W.3d at 744. He received concurrent sentences of imprisonment

for offenses committed before September 1, 1997, and consecutive sentences of

imprisonment for offenses committed after that date.            Id.   The court in DeLeon

considered the issue of the trial court's discretion with regard to consecutive sentencing

when Section 3.03(b) offenses committed after the effective date of the 1997 amendment

are tried together with such offenses committed before the effective date. The court

stated:

          We think the answer to the question presented is found in the statutory
          language establishing the effective date of the 1997 amendment to section
          3.03. As the Court of Criminal Appeals pointed out in Bahena, 195 S.W.3d
          at 705, the legislature used different "effective date" language in the 1995
          and 1997 amendments. The legislature made the 1995 amendment,
          permitting consecutive sentences for multiple intoxication manslaughter
          convictions, applicable only if each offense joined for trial was committed
          on or after the amendment's effective date, September 1, 1995. The
          effective date language of the 1997 amendment does not contain such a
          provision. The 1997 statute simply stated that its change in law applies
          only to "an offense committed on or after" its effective date, September 1,
          1997, and that offenses committed before that date are subject to the law in


York v. State                                                                            Page 7
        effect when the offense was committed. Act of May 31, 1997, 75th Leg.,
        R.S., ch. 667,§§ 7, 8, 2250, 2252-53. (footnotes omitted).

        DeLeon v. State, 294 S.W.3d at 746-7. The court found that the trial court had

discretion to cumulate sentences for the offenses committed after September 1, 1997.

DeLeon v. State, 294 S.W.3d at 749.

        The jury found York guilty in Counts V through XII for offenses occurring after

September 1, 1997. We find that the trial court did not abuse its discretion in ordering

the sentences in Counts V through XII to run consecutively. See DeLeon v. State, 294

S.W.3d at 747. We overrule the third issue.

        The Supreme Court determined in Apprendi v. New Jersey that "[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt."    Barrow v. State, 207 S.W.3d 377, 379 (Tex. Crim. App. 2006).

Apprendi and its progeny clearly deal with the upper-end extension of individual

sentences, when that extension is contingent upon findings of fact that were never

submitted to the jury. Id. These decisions do not, however, speak to a trial court's

authority to cumulate sentences when that authority is provided by statute and is not

based upon discrete fact-finding, but is wholly discretionary.     Id.   The trial court

imposed a valid sentence within the statutorily prescribed range for each of York’s

convictions. See Barrow v. State, 207 S.W.3d at 379. The cumulated sentences did not

violate Apprendi. We overrule the fourth issue.




York v. State                                                                     Page 8
                                     Attorney Fees

        In the fifth issue, York argues that the trial court erred in assessing court

appointed attorney’s and investigator’s fees against him because he is indigent. The

State concedes that there is insufficient evidence to support the assessment of the fees.

We sustain the fifth issue. We modify the judgment to delete the findings that order

York to pay his court appointed attorney’s and investigator’s fees.

                                      Conclusion

        We modify the trial court’s judgment to delete the findings that order York to

pay his court appointed attorney’s and investigator’s fees. We affirm the judgment as

modified.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed June 20, 2012
Do not publish
[CRPM]




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