                             NUMBER 13-10-00654-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


SEAN ANDERSON,                                                               Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                             MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
       Appellant, Sean Anderson, was convicted by a jury of three counts of sexual

assault, see TEX. PENAL CODE ANN. § 22.011 (West 2011), and one count of

unauthorized use of a motor vehicle, see id. § 31.07 (West 2011). Pursuant to a finding

of “true” to the State’s enhancement allegation, the trial court sentenced Anderson to life

imprisonment for each count of sexual assault. See id. § 12.42(c)(2)(B)(v) (West Supp.
2011) (requiring that a defendant receive a life sentence if he is convicted of sexual

assault and has previously been convicted “under the laws of another state containing

elements that are substantially similar to the elements” of, among other Texas crimes,

continuous sexual abuse of a young child or children, indecency with a child, sexual

assault, or aggravated sexual assault). Anderson received a two-year sentence for the

unauthorized use of a motor vehicle charge.                The sentences were ordered to run

concurrently. By four issues, which we have reorganized, Anderson contends that the

trial court: (1) denied his trial counsel the opportunity to impeach a witness’s testimony;

(2) commented on the weight of the evidence by providing a definition in the jury charge

of “penetration” and “reasonable doubt”; and (3) improperly assessed a punishment of

life imprisonment pursuant to section 12.42 of the penal code. See id. We affirm.

                                       I.      IMPEACHMENT1

        By his first issue, Anderson contends that the trial court improperly denied his

trial counsel’s attempt to impeach the testimony of the State’s witness, Detective Darrell

Johnson. Anderson alleges that during his testimony, Detective Johnson “attempted to

bolster the [S]tate’s case by exaggerating what the witnesses told him.”

        During the trial, Detective Johnson stated on direct-examination that J.K.

believed that Anderson had sexually assaulted her when she was “unconscious” after

ingesting alcohol, marihuana, and Xanax.                Detective Johnson testified that other

witnesses’ statements were consistent with J.K.’s reporting that she “was unconscious

for a lot of this time or at least has a memory loss for a lot of this time.” Detective


        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.


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Johnson testified that after speaking to the witnesses, he discovered that J.K. “seemed

to go from semi-conscious to the last witness who saw her . . . at 3 a.m. in the morning

who said that she was completely unconscious when [appellant] was moving her into

the elevator.”

       On cross-examination, Anderson’s defense attorney asked Detective Johnson

whether he had said during direct examination that in his opinion that the witnesses saw

J.K. “in a highly intoxicated state that approached being unconscious.”            Detective

Johnson replied, “I think I used the terms between being semiconscious and

unconscious.” Defense counsel asked if Detective Johnson recalled whether any of the

witnesses actually used the word “unconscious.” Detective Johnson stated that he

needed to refresh his memory by reviewing the witnesses’ statements.

       The trial court asked the jury to take a break, and the following occurred outside

the jury’s presence. Defense counsel repeated his question regarding whether any of

the witnesses used the term “unconscious,” and the State objected arguing that defense

counsel was attempting to elicit hearsay. Detective Johnson then stated, “There is not

the actual word ‘unconscious,’ [in the witnesses’ statements], but there’s almost a

clinical definition for unconscious in one of the statements.”         The trial court asked

defense counsel how Detective Johnson’s testimony regarding what other witnesses

said is admissible either as an exception to the hearsay rule or nonhearsay under rule

801. Defense counsel responded, “The Sixth Amendment here, which is a right to

cross-examine and confront the witnesses, trumps the hearsay rule in this particular

setting, so I object to the Court’s ruling.” The trial court stated:

             The Sixth Amendment does not give anyone the right to ask
       whatever question they want, and it does not nullify the entire book of the

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      Rules of Evidence. It just doesn’t. The Sixth Amendment allows you to
      cross—to confront the witness and to cross-examine within the rules, and
      that was an objectionable question from the prosecutor, quite frankly, to
      ask what other witnesses said, except for the Defendant, because he’s a
      party opponent.

              It wasn’t objected to, so it came in, and it’s—nonetheless, he can
      object at this point. If there is an exception in the hearsay rule or under—
      what is it, 801—that it is—I guess it’s 803 as well—that it is nonhearsay—
      no, it’s actually 801—that is nonhearsay, then that’s fine; but I haven’t
      heard that, so I’m going to sustain the objection.

      At trial, Anderson argued that the testimony he attempted to elicit from Detective

Johnson was admissible because the Sixth Amendment’s right to cross-examination

trumps the hearsay rule in this instance. Anderson does not make that argument on

appeal.    On appeal, Anderson argues that Detective Johnson’s testimony was not

hearsay.   At trial, Anderson did not make this argument.      Thus, Anderson has not

preserved this argument for our review. See Keeter v. State, 175 S.W.3d 756, 759–60

(Tex. Crim. App. 2005); see also Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App.

2007) (providing that appellate arguments must comport with objections at trial); Swain

v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (setting out that appellant did not

preserve the issue for appellate review because his argument at trial did not comport

with his argument on appeal). Accordingly, we overrule Anderson’s first issue.

                   II.    COMMENT ON THE WEIGHT OF THE EVIDENCE

      By his second issue, Anderson contends that the trial court commented on the

weight of the evidence in the jury charge by including an instruction regarding the

degree of penetration the State had to prove. The State counters that this Court has

already determined that the complained-of instruction is proper.




                                           4
          By his third issue, Anderson contends that the trial court commented on the

weight of the evidence by including an “instruction on the meaning of the term

‘reasonable doubt.’” Specifically, Anderson complains of the following instruction: “It is

not required that the prosecution proves guilt beyond all possible doubt; it is required

that the prosecutor’s proof excludes all ‘reasonable doubt’ concerning the defendant’s

guilt.”

A.        Penetration

          Anderson objected at trial to the following instruction:

                Where penetration is charged as an element of the offense, the
          burden is on the state to prove penetration and every other element of the
          offense beyond a reasonable doubt; and you are instructed that
          penetration is complete however slight.

Anderson argued that this instruction defined the term “penetration” and that in the

context of a jury charge, would amount to a comment on the weight of the evidence.

The trial court overruled Anderson’s objection to this instruction.

          In Wilson v. State, this Court concluded that the exact same language provided

in the jury charge in this case is neither a definition nor a comment on the weight of the

evidence. See 905 S.W.2d 46, 48–49 (Tex. App.—Corpus Christi 1995, no pet.). We

reasoned that “the language in the charge simply instructed the jury how the State had

to prove the element of penetration” and “[i]t did not inform or advise the jury that

penetration had occurred in the case nor that appellant had done so at any time.” Id. at

49. Accordingly, we conclude that the complained-of instruction was neither a definition

nor a comment on the weight of the evidence.               See id. at 48–49.   We overrule

Anderson’s second issue.




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B.         Reasonable Doubt

           Anderson complains of the following instruction:           “It is not required that the

prosecution proves guilt beyond all possible doubt; it is required that the prosecutor’s

proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” In Ruiz v. State,

this Court stated that the exact same instruction as the complained-of instruction is not

a definition of “reasonable doubt” and “does not run afoul of the court of criminal

appeals precedent in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000),

which held that trial courts are not required to define reasonable doubt and suggested

that ‘the better practice is to give no definition of reasonable doubt at all to the jury.’”

228 S.W.3d 691, 692–93 (Tex. App.—Corpus Christi 2005, no pet.). We concluded that

“the inclusion of the ‘beyond all possible doubt’ instruction is not an abuse of discretion.”

Id. at 693 (citing Woods v. State, 152 S.W.3d 105, 114–16 (Tex. Crim. App. 2004)).

Therefore, the trial court in this case did not abuse its discretion by including the

“beyond all possible doubt” instruction in the jury charge.                See id.     We overrule

Anderson’s third issue.2

     IV.       NORTH CAROLINA CONVICTION FOR TAKING INDECENT LIBERTIES WITH CHILDREN

           By his fourth issue, Anderson contends that the trial court erred in assessing a

punishment of life imprisonment. Specifically, Anderson argues that the North Carolina

offense for which he was previously convicted does not contain elements that are

substantially similar to the Texas offense of indecency with a child as found by the trial

court for enhancement purposes. See TEX. PENAL CODE ANN. § 12.42.
           2
          Having found no error, we need not address Anderson’s contention that because he objected to
the complained-of instruction, we must merely find that he suffered some harm to reverse the cause. See
Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994) (citing Almanza v. State, 686 S.W.2d 157
(Tex. Crim. App. 1984) (providing that whether the defendant objected to the jury charge becomes
relevant only after the appellate court finds error)).


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A.    Applicable Law and Standard of Review

      Section 12.42(c)(2) of the penal code provides for enhanced penalties for repeat

felony offenders.   See id.      Section 12.42(c)(2) mandates the imposition of a life

sentence for a defendant convicted of certain sexual offenses, including sexual assault,

that he committed after previously being convicted of an offense under the laws of

another state containing elements that are substantially similar to the elements of

certain enumerated Texas sexual offenses, including, among others, indecency with a

child. See id. Effectively, section 12.42(c)(2) “creates a ‘two-strikes policy’ for repeat

sex offenders in Texas, embodying the legislature’s intent to treat repeat sex offenders

more harshly than other repeat offenders.” Prudholm v. State, 333 S.W.3d 590, 592

(Tex. Crim. App. 2011).     In order to use a prior conviction from another state for

enhancement purposes, the trial court must take judicial notice of the relevant state

statute and then find that the elements of that offense are substantially similar to the

elements of an offense enumerated in section 12.42(c)(2)(B). Brooks v. State, 357

S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

      We review a trial court’s determination that the elements of the two offenses are

substantially similar de novo.     Id.   In order to conclude that two offenses contain

substantially similar elements, we first determine if the elements being compared

“display a high degree of likeness.” Prudholm, 333 S.W.3d at 594. We then must

decide whether the elements are substantially similar with respect to the individual or

public interests protected and the impact of the elements on the seriousness of the

offense. Id. at 599. The two offenses may be less than identical. Id. at 594; Brooks,



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357 S.W.3d at 786. Therefore, “one offense need not have every element of the other.”

Prudholm, 333 S.W.3d at 594.

B.      Discussion

        At the punishment portion of the trial, the State alleged that Anderson had

previously been convicted in North Carolina for the offense of taking indecent liberties

with a child. The State argued that the North Carolina offense contained elements

substantially similar to the elements of the Texas offense of indecency with a child.

After hearing oral argument from both sides, the trial court found that the two statutes

were substantially similar and sentenced Anderson to life imprisonment for each of the

three counts of sexual assault.

        Under North Carolina law, a person is guilty of taking indecent liberties with a

child if the person is sixteen years old or older, at least five years older than the child in

question, and either: (1) “Willfully takes or attempts to take any immoral, improper, or

indecent liberties with any child of either sex under the age of 16 years for the purposes

of arousing or gratifying sexual desire”3; or (2) “Willfully commits or attempts to commit

any lewd or lascivious act upon or with the body or any part or member of the body of

any child of either sex under the age of 16 years.”4 N.C. GEN. STAT. § 14–202.1 (2011).

North Carolina case law establishes that taking indecent liberties with a child includes,

among other things, the following acts: (1) the defendant touching the child’s vagina,


        3
          Indecent is defined as “grossly improper or offensive.” Merriam-Webster Online Dictionary,
available at http://www.merriam-webster.com/dictionary/indecent (last visited May 31, 2012). Immoral is
defined as “conflicting with generally or traditionally held moral principles.” Id. at http://www.merriam-
webster.com/dictionary/immoral (last visited May 31, 2012).
        4
          Lewd is defined as “sexually unchaste or licentious” and “obscene, vulgur.”              Id. at
http://www.merriam-webster.com/dictionary/lewd. Lascivious is defined as “lewd or lustful.”         Id. at
http://www.merriam-webster.com/dictionary/lascivious.


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see State v. Carter, 707 S.E.2d 700, 706 (N.C. 2011); (2) the child touching the

defendant’s penis, see State v. Hartness, 391 S.E.2d 177, 178–81 (N.C. 1990); and (3)

the defendant exposing his penis to the child, see State v. Smith, 592, 669 S.E.2d 299,

305 (N.C. 2008). See also State v. Baker, 333 N.C. 325, 329–30, 426 S.E.2d 73, 76

(1993) (“A broad variety of acts may be considered indecent and may be performed to

provide sexual gratification to the actor.”). Under Texas law, a person is guilty of the

offense of indecency with a child if, with a child younger than seventeen years of age,

he either (1) “engages in sexual contact with the child or causes the child to engage in

sexual contact” or (2) with the intent to arouse or gratify the sexual desire of any person,

he exposes his anus or any part of his genitals, knowing the child is present or causes

the child to expose his or her anus or any part of the child’s genitals. TEX. PENAL CODE

ANN. § 21.11 (West 2011).

        Both of these offenses criminalize, among other things, the touching of the child’s

genitals, the touching by the child of the offender’s genitals, and the exposure of the

offender’s genitals with the intent to arouse or gratify a person’s sexual desire. The

North Carolina statute differs from the Texas statute because it also criminalizes a

person’s attempt to commit any of the enumerated acts, it does not specify the exact

sexual acts that are prohibited, and it allows for the prosecution of acts that are not

prohibited under the Texas statute.5 See State v. Etheridge, 319 N.C. 34, 49, 352

S.E.2d 673, 682 (1987) (“We note first that it is not necessary that defendant touch his

victim to commit an immoral, improper, or indecent liberty within the meaning of the

        5
           In contrast, section 21.11 of the Texas Penal Code strictly defines sexual contact as the
touching of the child’s genitals, anus, or breasts with the intent to arouse or gratify a person’s sexual
desire or the touching of any part of a child’s body with the actor’s anus, breast, or genitals with the intent
to arouse or gratify a person’s sexual desire. See TEX. PENAL CODE ANN. § 21.11(c) (West 2011).


                                                      9
statute. Thus it has been held that the photographing of a naked child in a sexually

suggestive pose is an activity contemplated by the statute, as is masturbation within a

child’s sight and a defendant’s act of exposing his penis and placing his hand upon it

while in close proximity to a child. These decisions demonstrate that a variety of acts

may be considered indecent and may be performed to provide sexual gratification to the

actor. Indeed, the legislature enacted section 14–202.1 to encompass more types of

deviant behavior, giving children broader protection than available under other statutes

proscribing sexual acts.”) (internal citations omitted)). Although the elements of both

statutes are not identical in every way, and the North Carolina statute criminalizes

behavior not contemplated by the Texas statute, we conclude that they are similar

enough to indicate a high degree of likeness, and thus, satisfy the first part of the

substantially similar test.

       Next, both statutes seek to punish the sexually-motivated touching of children or

sexually-motivated exposure of certain body parts to children.      The public interest

protected by both statutes is clearly to safeguard children from improper sexual

touching and/or sexual exposure. Anderson argues that the North Carolina statute “is

aimed at preventing a wider type of conduct and of much less significant nature.”

However, North Carolina case law establishes that the conduct prohibited by the statute

includes the same type of sexual conduct prohibited by the Texas statute.

       Therefore, we conclude that the elements of the North Carolina offense of taking

indecent liberties with children are substantially similar to the elements of the Texas

offense of indecency with a child, one of the enhancement offenses enumerated in




                                          10
section 12.42.   See TEX. PENAL CODE ANN. § 12.42.          Accordingly, we overrule

Anderson’s fourth issue.

                                  V.     CONCLUSION

      We affirm the trial court’s judgment.

                                                      __________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
28th day of June, 2012.




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