                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00419-CR


Lee A. Rushton                            §   From the 213th District Court

                                          §   of Tarrant County (1191333D)

v.                                        §   February 28, 2013

                                          §   Per Curiam (nfp)

The State of Texas                        §   Dissent by Justice Dauphinot (p)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-11-00419-CR


LEE A. RUSHTON                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


                                      ----------

           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      In two issues, appellant Lee A. Rushton appeals his convictions for

indecency with a child by contact and aggravated sexual assault of a child.2 We

affirm.




      1
          See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 21.11(a)(1),           (c)(1)   (West   2011),
§ 22.021(a)(1)(B)(iii), (2)(B) (West Supp. 2012).


                                          2
                               Background Facts

      When Taylor3 was eight years old, she and her mother moved into a three-

bedroom apartment in Fort Worth. At some point, appellant became Taylor’s

mother’s boyfriend, and he moved into the apartment.       Taylor’s mother, who

used drugs and drank too much alcohol, often left Taylor alone with appellant.

On one of those occasions, at night, appellant asked Taylor, who was nine years

old at the time, to lie with him on a couch. When Taylor did so, appellant touched

her legs, pulled her pajama pants and underwear off, pulled his own pants off,

touched her vagina with his hand, got on top of her, and inserted his penis into

her vagina. Taylor felt pain and bled from her vagina. Appellant told Taylor to

not say anything about what had occurred, but Taylor told her mother and later

told her fifteen-year-old sister, who was living in El Paso, about what appellant

had done.

      Taylor eventually moved in with her godparents and also told them about

what had happened with appellant.      Taylor’s godparents did not immediately

notify the authorities about what Taylor had said. Later, Taylor moved back in

with her mother.

      When Taylor was sixteen years old, her older cousin, with whom Taylor

had lived for a short time, told Child Protective Services (CPS) about Taylor’s


      3
       To protect the victim’s anonymity, we will use a pseudonym. See Daggett
v. State, 187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State,
643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                        3
sexual encounter with appellant.      A CPS employee interviewed Taylor and

learned about appellant’s sexual contact with her.      Taylor later spoke with a

police officer about appellant’s crimes. The police arrested appellant.

      Appellant’s indictment included, among other allegations, charges of

aggravated sexual assault of a child (based on an assertion that appellant

intentionally or knowingly caused Taylor’s sexual organ to contact his own sexual

organ when Taylor was younger than fourteen years old) and indecency with a

child by contact (based on an assertion that appellant, with the intent to arouse or

gratify his sexual desire, engaged in sexual contact with Taylor by touching her

vagina). The trial court appointed counsel to represent appellant.        Appellant

chose the trial court to assess his punishment in the event that he was convicted.

      At trial, appellant pled not guilty.     After receiving the evidence and

deliberating for approximately twenty minutes, the jury convicted appellant of

both offenses. The trial court assessed concurrent thirty-year sentences for each

of the offenses.4 Appellant brought this appeal.

                    Request for Election Between Offenses

      In his first issue, appellant contends that the indecency with a child by

contact offense should not have been submitted to the jury because the jury

charge did not specify the manner of contact, and the jury could have therefore

based its indecency with a child by contact conviction on the same penile-to-

      4
       The trial court found that the indictment’s enhancement paragraph, which
alleged that appellant had been previously convicted of a felony, was true.


                                         4
vaginal contact that resulted in the aggravated sexual assault conviction.

Appellant argues that the trial court should have required the State to elect to

proceed on only one of the two counts and that the submission of both counts

violated his constitutional protection against double jeopardy.5

      After both parties rested, but before the jury received its charge or the

parties made closing arguments, appellant’s counsel asked the trial court to

require the State to elect to proceed on either aggravated sexual assault or

indecency with a child by contact, stating,

      Count One of this indictment alleges a sexual assault by touching
      the female sexual organ with the male sexual organ of the
      defendant. Count Two was waived, so we’re now dealing with Count
      Three. And Count Three also alleges a sexual contact by touching
      the vagina, and it doesn’t say in what manner. We would submit
      under the [Patterson v. State6] analysis by the Court of Criminal
      Appeals, that Count Three or Count One, the State needs to make
      an election, because they can’t get a conviction off of both the way
      they’ve alleged it.

            ....

            . . . [Patterson] is an identical situation to this where you have
      an aggravated sexual assault of a child case of a touching of the
      female sexual organ, and then they had a second conviction in the
      same case for indecency with a child by sexual contact by touching
      the female sexual organ.

             . . . [Patterson] says that under the situation we have here, it
      invites the jury to find one act and get two convictions, which is a
      violation of double jeopardy. That’s a position we’re advancing to
      the Court because in this situation, the jury could quite well find a

      5
       See U.S. Const. amend. V.
      6
       152 S.W.3d 88 (Tex. Crim. App. 2004).


                                         5
      penetration by the penis to the female sexual organ and convict
      under both counts because there’s not a limitation under Count
      Three as to how the touching occurred.

In response to appellant’s oral motion for an election, a prosecutor stated,

      Paragraph One is an allegation of aggravated sexual assault in that
      the touching is genital-to-genital. . . . Count Three is an allegation of
      indecency with a child by sexual contact, and that can be -- it can be
      by any means other than genital-to-genital. The . . . victim testified
      that he touched her and actually penetrated her, much less
      contacted her with his penis to her female sexual organ, and she
      also testified that he used his hand to touch . . . her sexual organ.

The trial court indicated that it would rule on appellant’s motion for an election on

the next day.

      The following morning, appellant again urged the motion, asking the court

to require the “State to elect with regards to Count One . . . and Count Three.”

The State contended that the evidence that had been presented established two

separate offenses because the genital-to-genital contact qualified as aggravated

sexual assault and the hand-to-genital contact qualified as indecency with a

child. The trial court denied appellant’s “motion to require the State to elect

which count [they were] going to proceed on,” and the court submitted a jury

charge on both counts.       Specifically, the charge instructed the jury to find

appellant guilty of aggravated sexual assault of a child if it found beyond a

reasonable doubt that Taylor was younger than fourteen years old when

appellant intentionally or knowingly caused her sexual organ to contact his

sexual organ, and the charge instructed the jury to find appellant guilty of

indecency with a child by contact if it found beyond a reasonable doubt that “with


                                         6
intent to arouse or gratify [his] sexual desire . . ., [he] engage[d] in sexual contact

by touching [Taylor’s] vagina.”

      On appeal, relying on Patterson, appellant argues that the trial court’s

ruling and jury charge were improper because although the jury could have found

that the indecency with a child by contact conviction was based “on the separate

act of the Appellant touching the alleged victim with his hand,” there was a

chance that the jury found appellant guilty of the indecency with a child by

contact offense for the genital to genital touching that supported the aggravated

sexual assault conviction.

      In Patterson, the State had charged Patterson with five offenses arising

from two sexual encounters that he had with an eleven-year-old girl. 152 S.W.3d

at 89. The jury convicted Patterson of all five charges, but he alleged that some

of the convictions violated the constitutional prohibition against double jeopardy.

Id.   Particularly, he asserted that double jeopardy principles precluded

convictions for aggravated sexual assault of a child and indecency with a child by

exposure when the exposure occurred prior to the sexual assault. See id. The

court of criminal appeals, although not directly addressing double jeopardy, held

that convictions could not be obtained for both offenses, explaining in part,

      While it is clear from the plain language of the various statutes that
      the legislature intended harsh penalties for sexual abuse of children,
      there is nothing in the language to suggest that it intended to
      authorize “stop-action” prosecution. . . .

            . . . The record in this case does not show an occasion during
      the assaults when the exposure was a separate offense. Under the


                                          7
       facts of these incidents, exposure was incident to and subsumed by
       the aggravated sexual assault.

Id. at 92.

       While the court of criminal appeals’s rationale in Patterson, along with the

law discussed in that opinion, prevents convictions for sexual offenses that are

incident to and subsumed by other sexual offenses, see McGlothlin v. State, 260

S.W.3d 124, 127–28 (Tex. App.—Fort Worth 2008, pet. ref’d), multiple

convictions may be obtained for different sexual acts occurring in the same

episode when those acts are not subsumed within each other. See id. at 126–

29; see also Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) (holding

that convictions may be obtained both for the defendant’s penile penetration of a

child’s sexual organ and the defendant’s oral contact with a child’s sexual organ

even when those acts occur in “close temporal proximity”); Bottenfield v. State,

77 S.W.3d 349, 358 (Tex. App.—Fort Worth 2002, pet. ref’d) (“Although the two

acts in T.H.’s case may have been committed during the same occurrence,

appellant’s touching of T.H.’s genitals with his finger was a separate and distinct

criminal act from contacting her sexual organ with his penis.”), cert. denied, 539

U.S. 916 (2003); Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.—Austin

1999, pet. ref’d) (“Although the two acts were committed in close temporal

proximity, appellant’s touching of L.M.’s genitals with his fingers was a separate

and distinct act from his penetration of her female sexual organ with his penis.”).




                                         8
      Appellant appears to recognize that his sexual contact with Taylor by his

hand and by his penis could comprise distinct offenses, but he nonetheless

argues that the State should have been required to elect between the two

offenses because the jury charge did not specify which manner of touching

supported indecency with a child by contact. Precedent from the court of criminal

appeals and our own court, however, compels us to reach the opposite

conclusion.

      In Ochoa v. State, the State had charged Ochoa with five counts of

aggravated sexual assault occurring on five distinct dates and five counts of

indecency with a child occurring on the same dates. 982 S.W.2d 904, 905 (Tex.

Crim. App. 1998). A jury convicted Ochoa of one count of aggravated sexual

assault and one count of indecency with a child, with each offense having

occurred on the same day. Id. Ochoa had complained at trial that the State

should not have been able to convict him for both offenses and had requested

the State to elect the offense upon which it would proceed, but the trial court had

overruled his objection to the submission of both offenses.           Id. at 906–07.

In affirming a court of appeals’s reversal of Ochoa’s conviction for indecency with

a child, the court of criminal appeals stated,

      [T]he [court of appeals] should have focused on whether the
      evidence in this case justified the trial court in submitting instructions
      that would permit the jury to convict and sentence appellant both for
      committing aggravated sexual assault and for committing indecency
      with a child on June 16, 1994. . . .




                                          9
            In [Ochoa’s] trial, the State presented evidence of only one
      sexual offense committed by [Ochoa] against C.O. on June 16,
      1994. C.O. did not testify that [Ochoa] touched her more than one
      time on that day. . . .

            ....

             . . . Because there was evidence of only one offense
      committed by [Ochoa], . . . we hold that the State should have
      elected which offense upon which it would proceed or, in the
      alternative, received a submission of the offense of indecency with a
      child to the jury only as a lesser-included alternative to the offense of
      aggravated sexual assault.

           The State was not entitled to seek convictions for two offenses
      because the evidence at trial shows that only one offense was
      committed.

Id. at 907–08 (emphasis added).

      Similarly, in Bottenfield, we considered whether a trial court had erred by

denying a defendant’s request to require the State to elect between seeking a

conviction for aggravated sexual assault or indecency with a child by contact.

77 S.W.3d at 357. We resolved that question based on whether the “evidence

justified the trial court in submitting instructions that would permit the jury to

convict and sentence appellant both for committing aggravated sexual assault

and for committing indecency with a child . . . [in other words], whether the

evidence show[ed] [Bottenfield] committed two separate offenses.” Id. at 357–58

(emphasis added).      Applying this test, we held that because Bottenfield’s

“conviction for aggravated sexual assault was not based on the same conduct

underlying his conviction for indecency, the evidence was sufficient to show that




                                         10
more than one offense was committed by [him], and submission of both

aggravated sexual assault and indecency was proper.” Id. at 358.

      Finally, in Hutchins, similar to the charges in this case, the State had

charged Hutchins in one count with penetrating a child’s female sexual organ

with his penis and had charged him in another count with touching the same

child’s genitals with the intent to arouse and gratify his sexual desire, without

specifying how the touching occurred. 992 S.W.2d at 631. The child testified

that Hutchins had touched her private area with his fingers and his genitals. Id.

The Austin Court of Appeals held that convictions could be obtained for both

offenses without violating double jeopardy, explaining,

             If the evidence . . . showed that the only act of sexual contact
      committed by appellant . . . was the contact incident to appellant’s
      penetration of L.M. with his penis, or if the court’s jury charge had
      required the jury to find that appellant touched L.M. with his penis,
      we would . . . agree with appellant that he could not be convicted for
      both aggravated sexual assault and indecency with a child by
      contact. See Ochoa, 982 S.W.2d at 907–08. But neither the
      evidence nor the charge was so limited. L.M. testified that appellant
      touched her genitals with his fingers before penetrating her with his
      penis. The jury charge, tracking the indictment, required the jury to
      find only that appellant touched L.M.’s genitals with the requisite
      intent; the charge did not require a finding that appellant touched
      L.M. with his penis. Although the two acts were committed in close
      temporal proximity, appellant’s touching of L.M.’s genitals with his
      fingers was a separate and distinct act from his penetration of her
      female sexual organ with his penis. Because appellant has not
      shown that his conviction for indecency with a child by contact was
      based on the same conduct underlying his conviction for aggravated
      sexual assault of a child, his contention that these convictions
      constitute multiple punishments for the same offense is without
      merit.




                                        11
Id. at 633; see also Bailey v. State, No. 02-05-00394-CR, 2007 WL 79544, at *7–

8 (Tex. App.—Fort Worth Jan. 11, 2007, pet. ref’d) (mem. op., not designated for

publication) (holding that it was proper for the trial court’s charge to include both

“aggravated sexual assault of a child by penetration” and “indecency with a child

by contacting the genitals of a child” because evidence existed that the

defendant touched the victim’s genitals with both his finger and his penis); Reyes

v. State, No. 04-03-00474-CR, 2004 WL 1665906, at *3 (Tex. App.—San Antonio

July 28, 2004, no pet.) (mem. op., not designated for publication) (holding that

the “concept of mandating an election by the State” between aggravated sexual

assault and indecency with a child charges was inapplicable because the State

“ha[d] proven that there were two distinct and separate acts”); Beltran v. State,

30 S.W.3d 532, 534 (Tex. App.—San Antonio 2000, no pet.) (holding that

submission of both aggravated sexual assault and indecency with a child by

contact to the jury was proper, even though the indictment did not specify the

manner of contacting the child’s genitals for the indecency with a child offense,

because there was evidence that the defendant touched the child’s sexual organ

with his hand and placed the child’s sexual organ in his mouth); Romero v. State,

Nos. 04-98-00026-CR, 04-98-00027-CR, 1999 WL 33108, at *8 (Tex. App.—San

Antonio Jan. 27, 1999, no pet.) (not designated for publication) (turning to “a

review of the evidence” to determine the propriety of the submission of both

indecency with a child and aggravated sexual assault of a child).




                                         12
      Based on the foregoing authority, because the evidence in this case—

appellant’s touching Taylor’s genitals with both his hand and his penis—justified

the submission of both aggravated sexual assault and indecency with a child by

contact to the jury, we hold that the trial court did not err by overruling appellant’s

motion for an election and that appellant was not subjected to double jeopardy by

being convicted of both offenses.7 See Ochoa, 982 S.W.2d at 906–08. We

overrule appellant’s first issue.

    Appellant’s Argument Concerning Ineffective Assistance of Counsel

      In his second issue, appellant contends that his trial counsel was

ineffective because counsel informed the jury that he was appointed to represent

appellant.   During his introductory statement to the jury panel in voir dire,

appellant’s counsel stated in part,

      The people in the jury box, the judges of the facts, don’t get to pick
      the law that they get to follow. . . . And if there’s a legal issue, the
      lawyers address it to [the trial court] in the proper form . . . and [the

      7
       We note that through the State’s closing argument, the jury became
aware that the State was relying on genital-to-genital contact for the aggravated
sexual assault conviction and on hand-to-genital contact for the indecency with a
child by contact conviction. The prosecutor said in part,

      The first offense involves aggravated sexual assault of a child.
      We’re talking about the act of contacting one sexual organ to a
      child’s sexual organ. That’s the act.

             In the second count, we’re not talking about that kind of
      contact. We’re talking about the fact that [Taylor] testified to you that
      prior to this man climbing up on top of her, he removed her pants, he
      removed her underwear, and he took his hand, and he touched her
      vagina. That’s the second act we’re talking about.


                                          13
      court] makes the determinations of what you, as a jury, can or can’t
      hear based upon the rules of evidence or purpose or procedure or
      whatever.

            ....

            Now, all of us have rules in their particular place of work or at
      home, and it’s no different here in the courtroom. Right now, y’all
      are not before the bar. The bar is this -- well, a bar. Okay. And
      basically, everybody on this side has a public duty to perform,
      whether it be an appointed defense lawyer like me or a prosecutor,
      judge, court reporter, clerk, whoever. Once we take an oath to
      perform a public duty, we can’t let our personal feelings come into
      the case at all.

             When you get to be a juror, you will come in front of the bar
      because you will have sworn to perform a public duty, and you have
      to leave your personal feelings alone also.

            Now, does it mean you lose your common sense? No. What
      it means is this: You have to put your personal feelings aside, as
      long as you follow the rules and you listen to the evidence fairly to
      both sides. That’s what it means. Okay. We’re not asking you to
      give up anything that you should use, like your common sense.
      Okay. Anybody have any questions or problems with that?

      While recognizing that he has been unable to find Texas cases that

support his argument, appellant contends that there was “no conceivable trial

strategy for telling a jury that [counsel] is court appointed. The only reason for

doing so is to insulate oneself from his client, and to let the jury know that trial

counsel did not represent the Appellant by choice.”

      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have


                                        14
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In

other words, for a claim of ineffective assistance of counsel to succeed, the

record must demonstrate both deficient performance by counsel and prejudice

suffered by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.

App. 2012). The record must affirmatively demonstrate the meritorious nature of

a claim of ineffective assistance of counsel. Id. (quoting Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999)).

      In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular

circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether

counsel’s assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065.      Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. To overcome

the presumption of reasonable professional assistance, “any allegation of


                                       15
ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at

740 (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate

court to simply infer ineffective assistance based upon unclear portions of the

record.   Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial

counsel “should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective.”       Menefield, 363 S.W.3d at 593 (quoting

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel

is not given that opportunity, then the appellate court should not find deficient

performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Menefield, 363 S.W.3d at 593

(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

      Under some circumstances, when a defendant’s counsel makes prejudicial

references to the defendant, ineffective assistance may occur.          See, e.g.,

Ex parte Guzmon, 730 S.W.2d 724, 733–34 (Tex. Crim. App. 1987) (holding that

counsel was ineffective because, in part, they repeatedly referred to their client

as a “wetback” when juror members had indicated during voir dire that illegal

aliens might not be entitled to as much protection as U.S. citizens). We do not

deem appellant’s counsel’s comment, however, as the same type of prejudicial

and inflammatory comment at issue in Guzmon, and neither have other courts of

appeals. See Troutt v. State, No. 10-10-00422-CR, 2011 WL 2641277, at *3

(Tex. App.—Waco July 6, 2011, no pet.) (mem. op., not designated for


                                        16
publication) (concluding that counsel was not ineffective for telling the jury that he

was appointed when the record was silent about counsel’s reasons for doing so);

Morrison v. State, No. 01-93-00429-CR, 1994 WL 599484, at *4 (Tex. App.—

Houston [1st Dist.] Nov. 3, 1994, pet. ref’d) (not designated for publication)

(holding similarly). From the context of counsel’s comment, it appears that he

was attempting to implore jurors to follow their duty of objectivity by stating that

each of the other participants in the trial also had duties. We cannot conclude,

without more, that making this comment caused the totality of appellant’s

counsel’s conduct to fall below prevailing professional norms. See Strickland,

466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 813.

      The cases cited by appellant are distinguishable. In one case, upon the

filing of an application for a writ of habeas corpus, counsel explained that his

reason for telling the jury that he was appointed to represent the defendant was

that, essentially, it would have negatively affected counsel’s reputation in the

community if the community believed that he represented the defendant by

choice.   Goodwin v. Balkcom, 684 F.2d 794, 805–06 (11th Cir. 1982), cert.

denied, 460 U.S. 1098 (1983).8 The Eleventh Circuit held that such an attitude

by counsel tended to show that counsel’s total representation had been

adversely affected. Id. at 806 (“Fears of negative public reaction to the thought


      8
       Cases from federal courts of appeals may be persuasive, but they are not
precedential. Bundy v. State, 280 S.W.3d 425, 432 n.5 (Tex. App.—Fort Worth
2009, pet. ref’d).


                                         17
of representing an unpopular defendant surely hamper every facet of counsel’s

functions.”). In the other case, a dissenting opinion discussed how an attorney

had not only told a jury that he was appointed but had also referred to the

defendant’s insanity defense as “pitiful,” had suggested that he did not personally

believe in the defense, and had stated that he was disgusted by the crime the

defendant was charged with. People v. Wade, 750 P.2d 794, 809–10 (op. on

reh’g) (Broussard, J., dissenting), cert. denied, 488 U.S. 900 (1988).         The

circumstances here were substantially less negative and supported a reasonable

trial strategy.

       For these reasons, we cannot hold that appellant has sustained his burden

to prove ineffective assistance of counsel by a preponderance of the evidence.

See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. We therefore overrule his

second issue.

                                   Conclusion

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

judgments of conviction.

                                                   PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 28, 2013



                                        18
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                 NO. 02-11-00419-CR


LEE A. RUSHTON                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


                                      ----------

        FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                           DISSENTING OPINION

                                      ----------

      Respectfully, I cannot join the majority opinion, and I write separately to

correct the majority’s apparent misunderstanding of female anatomy. To be fair,

the majority merely repeats the State’s apparent misunderstanding.      But that

misunderstanding has significant implications when addressing Appellant’s

objections to the jury charge.

      Words have meaning.         In the law, as in other endeavors, words are

important. In the indictment in this case, the State alleged “sexual contact by
touching the vagina” of the complainant.        The indictment also alleged that

Appellant caused “the sexual organ of [the complainant] . . . to contact [his]

sexual organ.”

      The majority states as fact that Appellant touched the complainant’s leg

and vagina with his hand and then inserted his penis into her vagina. Appellant

argued in the trial court, as he argues here, that the indictment authorized the

jury charge that allowed the jury to find him guilty of the two offenses of touching

the complainant’s sexual organ with his penis and touching her vagina with his

penis. That is, the indictment and the jury charge permitted the jury to convict

Appellant of two offenses as a result of a single act, violating state and federal

constitutional prohibitions against double jeopardy.1

      The vagina, unlike the more expansive terms “genitals,” “genitalia,” and

“sexual organ,” is exclusively an internal organ; it is a tube that lies between the

hymen and the cervix.2 It is not to be confused with the vulva, which comprises

the external female genitalia:     the labia majora, labia minora, clitoris, and

vestibule of the vagina into which the vagina opens but which is not the vagina.3




      1
        See Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009); Ochoa v.
State, 982 S.W.2d 904, 908, 909–11 (Tex. Crim. App. 1998) (majority op. and
Keller, J., concurring).
      2
       See Taber’s Cyclopedic Medical Dictionary V-3 (11th ed. 1970).
      3
       Id. at V-27.


                                         2
      Unlike the word “vagina,” the term “sexual organ” includes both internal

and external genitalia. The importance of this distinction has been explained by

the Texas Court of Criminal Appeals, as well as by this court:

             Expert testimony in the case described the female sexual
      organ as being comprised of an external and an internal part. The
      external part consists of outer vaginal lips, or labia majora, which
      enfold an opening to the internal organ or vaginal canal. Clinical
      examination of the complainant in this case disclosed a healing
      wound under the fold of these lips, near the vaginal entrance. The
      examining physician testified that this injury was “not actually inside
      the vagina . . . [but] beneath the hymen . . . on the skin that’s called
      the introitus[.]” However, he also opined that the injury was “entirely
      consistent with penetration of the vagina,” by which he meant that
      the injury was caused by an object passing “within the plane of the
      sex organ.”4

And this court has explained that “touching the vagina” perforce requires

penetration of the female sexual organ beyond mere contact:

      [T]he vagina is an internal organ. It is a canal that leads from the
      uterus of a female mammal to the external orifice of the genital
      canal. The hymen lies at the entrance to the vaginal canal. The
      vagina, therefore, cannot be brushed by the fingers unless the
      fingers penetrate the hymen.5

      If the purposes of an indictment are to provide notice of what must be

proved, to govern the “hypothetically correct” jury charge, and to prevent a




      4
       Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
      5
        Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.—Fort Worth 1997, no
pet.) (citation omitted).


                                         3
person’s being placed in repeated jeopardy for the same criminal act, 6 then we

cannot cavalierly rewrite the plain meaning of words.

      When the indictment alleged that Appellant caused the complainant’s

sexual organ to contact his sexual organ (count one) and that Appellant touched

the vagina of the complainant but did not also allege which part of his body or

inanimate object he used to touch her vagina (count three), and the complainant

testified that Appellant touched her vagina with both his hand and his penis, the

jury could have convicted Appellant of both offenses by finding only that he

penetrated her vagina with his penis. Penetration of the vagina is not possible

without contacting the sexual organ, which includes the vagina.

      Because the majority wholly fails to address this important issue, and

because the majority appears to use the term “vagina” in referring to the vulva, I

cannot join the majority and must respectfully dissent.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: February 28, 2013




      6
       See, e.g., Byrd v. State, 336 S.W.3d 242, 257 (Tex. Crim. App. 2011).


                                         4
