                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00386-CR

TEDDY LEE CALDWELL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2012-297-C2


                         MEMORANDUM OPINION


      In two issues, appellant, Teddy Lee Caldwell, challenges his convictions for two

counts of sexual assault of a child and one count of indecency with a child by contact.

See TEX. PENAL CODE ANN. §§ 21.11, 22.011 (West 2011). We affirm.

                                  I.     BACKGROUND

      Appellant was charged by indictment with three counts of sexual assault of a

child, a first-degree felony, and one count of indecency with a child by contact, a

second-degree felony. See id. §§ 21.11(d), 22.011(f). The State alleged that appellant
perpetrated the charged offenses against his step-daughter, I.H., on or about May 1,

2010 and February 11, 2011.

        The State proceeded to trial on two of the three counts of sexual assault of a child

and the one count of indecency with a child by contact. At the conclusion of the

evidence, the jury found appellant guilty of the three charged offenses and assessed

punishment as follows: (1) ninety-nine years’ confinement in the Institutional Division

of the Texas Department of Criminal Justice with a $10,000 fine for the first count of

sexual assault of a child; (2) forty years’ confinement with a $10,000 fine for the second

count of sexual assault of a child; and (3) fifteen years’ confinement with a $10,000 fine

for the one count of indecency with a child by contact. The trial court ordered the

imposed sentences to run consecutively and certified appellant’s right of appeal. This

appeal followed.

                             II.    SUFFICIENCY OF THE EVIDENCE

        In his first issue, appellant contends that the evidence adduced at trial is

insufficient to establish that the victim was younger than seventeen years old when the

two counts of sexual assault of a child were allegedly committed.

A.      Applicable Law

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.

Caldwell v. State                                                                      Page 2
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
        (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
        “familiar standard gives full play to the responsibility of the trier of fact
        fairly to resolve conflicts in the testimony, to weigh the evidence, and to
        draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
        U.S. at 319. “Each fact need not point directly and independently to the
        guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction.”
        Hooper, 214 S.W.3d at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.      Furthermore, direct and circumstantial

evidence are treated equally:       “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

Caldwell v. State                                                                       Page 3
theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

        To satisfy the elements of sexual assault of a child in this case, the State was

required to prove that appellant intentionally or knowingly penetrated the sexual organ

of I.H., a child under seventeen years of age at the time of the incidents, by any means.

See TEX. PENAL CODE ANN. § 22.011(a)(2)(A).

B.      Facts

        Marc Gosselin, formerly an officer with the Waco Police Department, testified

that he was involved with the initial report regarding the purported sexual abuse

perpetrated by appellant against I.H. Gosselin noted that I.H. was seventeen years old

at the time of the report and that her birthday is May 8, 1993. At trial, I.H. testified that

appellant first sexually assaulted her when she was sleeping in the same bed as her

sister, P.H. In this instance, I.H. stated that appellant “pulled [her] clothes, or whatever,

down and put his fingers inside of [her].” Later, I.H. noted that appellant repeatedly

sexually assaulted her when she was a sixteen-year-old sophomore in high school and

that the assaults continued until she was almost eighteen years old.            The victim

recounted that appellant penetrated her vagina with his fingers two or three times

while she was sharing a room with P.H. and that appellant also penetrated her vagina

with his penis while her sister slept in the same bed. Additionally, I.H. testified that she

told CPS in February or March of 2011, when she was seventeen years old, that

appellant had been sexually assaulting her for “a year, almost over a year and a half.”




Caldwell v. State                                                                      Page 4
        P.H. later stated that she saw appellant on top of I.H. having “[u]nwanted

intercourse” and that I.H. would cry softly while it transpired. P.H. testified that I.H.

was fifteen or sixteen years old when the sexual assaults first began and that the sexual

abuse occurred “for a long time.” Thereafter, P.H. noted that I.H. first started telling

her about the sexual assaults perpetrated by appellant in the spring or summer of 2009,

which would have been when I.H. was approximately sixteen years old. Furthermore,

P.H. recounted that I.H. told her that the sexual assaults occurred long before P.H. saw

it herself.

        Later at trial, the State introduced the examining report of Ann Sims, M.D.,

wherein Dr. Sims mentioned the following about I.H.:

                [I.H.] told me that [appellant] started doing things to her when she
        was 16 and it continued for 2 years, including during the time she was
        having sex with her friend.[1] She said[,] at first[, appellant] did things to
        her at night in the room she shared with her sister. She said he would
        come in while everyone else was sleeping and pull the covers off (she
        would pull them back on and he would pull them off), pull down her
        pants and underwear, lie down on top of her and “stick his thing into
        me.” She said that it hurt but didn’t make her bleed. She said when he
        finished[,] he would tell her to pull her pants up and he would leave. She
        said he would also stick his fingers into her vagina and it would hurt a
        little. She said she would be wet after he finished, and she would get up
        early while everyone else was still sleeping and go take a shower. She
        said when he would come into the room[,] he would stand there and
        “look at me.” She said she was scared to tell anyone, that “I knew what
        I’d go through, go through the system, and be taken away from my
        momma.” [I.H.] said that her sister would hear her crying and knew what
        was going on, but she told her sister, “Don’t say anything,” so her
        momma wouldn’t know. She said [appellant] would take the kids to the
        store to get them something, and she didn’t want to go, but she didn’t


        1I.H. testified that a boy named “Lil Ron” impregnated her, but that she miscarried in the fall of
2009. I.H. also stated that she stopped having sex with “Lil Ron” after she became pregnant in 2009 and
that appellant was having sex with her before she started having sex with “Lil Ron.”

Caldwell v. State                                                                                  Page 5
        want her mom to find out what was going on so she went. She said
        [appellant] would buy them things, but he always “gave me more.”

               [I.H.] said that last year [2010] she started sleeping alone on the
        couch bed in the dining room, and that [appellant] would come in there
        and do the same things to her. She said her momma would be in her
        room asleep. She said [appellant] would “stand there and look at me,
        wake me up[,] and turn me over and pull my pants down.” (She said she
        slept on her side). She said he would make moaning sounds while he was
        doing it to her. She said it always happened at night while everyone was
        asleep, and she would “lay there and cry.” [I.H.] said that the last time
        [appellant] did anything to her was in February, just after Valentine’s Day,
        and after her February period. She said she had been sleeping a lot and
        eating a lot and gaining weight since then, and she was worried that she
        might be pregnant, but then she had a period in March. [I.H.] denied that
        [appellant] had ever kissed her, touched her breasts, put his penis in her
        mouth or anus, or made her touch his penis.

        And finally, the evidence established that I.H., her mother, and appellant all

tested positive for the same sexually-transmitted disease—trichomonas vaginalis. I.H

was diagnosed with trichomonas vaginalis in January 2010, and the record reveals that

appellant tested positive for the same sexually-transmitted disease on November 20,

2006.

C.      Discussion

        Ordinarily, the testimony of a child victim is sufficient to support a conviction for

sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Perez v.

State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled in part on other

grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008); Karnes v. State, 873

S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.); see also Dale v. State, Nos. 10-11-00380-

CR, 10-11-00381-CR, 2012 Tex. App. LEXIS 3127, at **24-25 (Tex. App.—Waco Apr. 18,

2012, pet. ref’d) (mem. op., not designated for publication). Further, courts give wide

Caldwell v. State                                                                      Page 6
latitude to the testimony given by child victims of sexual abuse. See Villalon v. State, 791

S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc).

        Here, I.H. testified that appellant had sex with her and digitally penetrated her

many times when she was sixteen years old.2 Moreover, I.H.’s sister, P.H., also testified

that appellant perpetrated the sexual assaults against I.H. when I.H. was fifteen or

sixteen years old. Furthermore, the examining report of Dr. Sims and the fact that, by

January 2010, appellant, I.H.’s mother, and I.H. all have the same sexually-transmitted

disease—trichomonas vaginalis—supports the jury’s conclusion that appellant had sex

with I.H. when she was sixteen years old.

        Therefore, viewing the evidence in the light most favorable to the jury’s verdict,

we conclude that a rational juror could have concluded that appellant intentionally or

knowingly caused the penetration of I.H.’s vagina with his penis and his fingers on

several occasions and that at least two of the incidents transpired prior to I.H.’s

seventeenth birthday. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A); see also Jackson, 443

U.S. at 318-19, 99 S. Ct. at 2788-89; Hooper, 214 S.W.3d at 13. Accordingly, we hold that



         2 Later in her testimony, I.H. could not recall whether appellant sexually assaulted her before her

seventeenth birthday; however, we note that it is within the province of the factfinder to judge the
credibility of the witnesses. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). This means
that the jury was entitled to believe all, some, or none of the testimony presented by the parties. See id.
And because it is within the province of the jury, we are to defer to the jury’s resolution of conflicts in the
evidence. See Jackson v. Virginia, 443 U.S. 307, 329, 99 S. Ct. 2781, 2792-93, 61 L. Ed. 2d 560 (1979); see also
Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex.
App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision regarding
what weight to give contradictory testimonial evidence because the decision is most likely based on an
evaluation of credibility and demeanor, which the jury is in a better position to judge.”). With its guilty
verdict, the jury resolved any conflicts in I.H.’s testimony in favor of the prosecution. Therefore, based on
the foregoing case law, and given the wide latitude given to the testimony of child victims of sexual
abuse, we defer to the jury’s resolution of the facts. See Jackson, 443 U.S. at 329, 99 S. Ct. at 2792-93;
Lancon, 253 S.W.3d at 706; Chambers, 805 S.W.2d at 461; see also Render, 316 S.W.3d at 859.

Caldwell v. State                                                                                       Page 7
the evidence is sufficient to support appellant’s convictions for sexual assault of a child.

See TEX. PENAL CODE ANN. § 22.011(a)(2)(A); see also Jackson, 443 U.S. at 318-19, 99 S. Ct.

at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We overrule appellant’s

first issue.

                              III.   THE PUNISHMENT CHARGE

        In his second issue, appellant complains that the trial court erred by not

including “the mandatory condition of community supervision that the Court create a

child safety zone as a condition of community supervision” in the punishment charge.

A.      Standard of Review

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).




Caldwell v. State                                                                     Page 8
B.      Applicable Law

        Under Texas law, the trial court must provide the jury with “a written charge

setting forth the law applicable to the case; not expressing any opinion as to the weight

of the evidence, not summing up the testimony, discussing the facts or using any

argument in [its] charge calculated to arouse the sympathy or excite the passions of the

jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see Walters v. State, 247 S.W.3d

204, 208 (Tex. Crim. App. 2008). However, Texas courts have stated that a trial court is

not required to submit the statutory terms of community supervision in the jury charge

on punishment. Sanchez v. State, 243 S.W.3d 57, 69 (Tex. App.—Houston [1st Dist.]

2007) (citing Croft v. State, 148 S.W.3d 533, 539 (Tex. App.—Houston [14th Dist. 2004, no

pet.)). In addition, this Court has noted that the failure to enumerate all of the terms of

conditions of community supervision is not considered harmful to the accused or

restrictive of the court’s authority. Wade v. State, 951 S.W.2d 886, 893 (Tex. App.—Waco

1997, pet. ref’d); see Sanchez, 243 S.W.3d at 69-70.

C.      Discussion

        At trial, appellant did not object to the punishment charge, nor did he request

that the trial court include the complained-of community-supervision provisions in the

punishment charge.3              Furthermore, the jury did not recommend community



        3   Nevertheless, the punishment charge included the following instruction:

        In this case, the Defendant has filed an application for probation, stating that he has
        never before been convicted of a felony offense in this State nor any other State. Our
        laws provide that if a person is charged with the offenses of Sexual Assault of a Child
        and Indecency with a Child by Contact, and if a jury finds him guilty, and if the
        punishment assessed therefor by said jury does not exceed ten years imprisonment, and

Caldwell v. State                                                                                 Page 9
supervision for appellant and, instead, imposed sentences of ninety-nine years, forty

years, and fifteen years—none of which made appellant eligible for community

supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(1) (West Supp. 2013).

And finally, appellant does not cite any relevant authority that required the trial court

to include the community-supervision instruction referenced on appeal. See Cortez v.

State, 955 S.W.2d 382, 384 (Tex. App.—San Antonio 1997, no pet.) (“[N]o statute or

decision requires the trial court to include the conditions of probation in the jury

charge.”); McNamara v. State, 900 S.W.2d 466, 468 (Tex. App.—Fort Worth 1995, no pet.);

Yarbrough v. State, 742 S.W.2d 62, 64 (Tex. App.—Dallas 1987), pet. dism’d, 779 S.W.2d

844 (Tex. Crim. App. 1989); see also Flores v. State, 513 S.W.2d 66, 69 (Tex. Crim. App.

1974) (“While it is considered good practice to enumerate in the court’s charge the

probationary conditions which the court may impose if probation is recommended by

the jury, the failure to so enumerate the said conditions is not harmful to the accused or


        if the jury further finds that the Defendant has never before been convicted of a felony in
        this State nor any other State, then the jury may, in its discretion[,] cause the Defendant
        to be placed on probation during his good behavior.

The punishment charge then listed fourteen different conditions of community supervision.
Furthermore, the punishment charge provided that:

        Now, therefore, if the punishment assessed by you does not exceed ten years
        imprisonment, and if you further find that the Defendant has never been before
        convicted of a felony in this State nor any other State, then you may, in your discretion,
        cause the imposition of the sentence in this case to be suspended, and cause the
        Defendant herein to be placed on probation during his good behavior.

                In the event you desire to suspend the imposition of the sentence of the
        Defendant and place him on probation, then let your verdict show that you find that the
        Defendant has never before been convicted of a felony in this State nor any other State,
        and further show that you recommend suspension of the imposition of the sentence, and
        that the Defendant be placed on probation. If you do not desire to suspend the
        imposition of the sentence and place the Defendant on probation, then you will say
        nothing in your verdict concerning the same.

Caldwell v. State                                                                                     Page 10
restrictive of the court’s authority under the statute.”).      Therefore, based on the

foregoing, we cannot say that the trial court erred by failing to include the complained-

of instruction in the punishment charge. See Hutch, 922 S.W.2d at 170. As such, we

overrule appellant’s second issue.

                                     IV.    CONCLUSION

         Having overruled both of appellant’s issues, we affirm the judgments of the trial

court.



                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 11, 2014
Do not publish
[CRPM]




Caldwell v. State                                                                  Page 11
