Affirmed and Opinion filed August 11, 2016




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00589-CR
                               NO. 14-15-00590-CR



                     ROYCE GENE ADAMS III, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 212th District Court
                          Galveston County, Texas
              Trial Court Cause Nos. 13-CR-1806 & 13-CR-1916

                                 OPINION
      Appellant Royce Gene Adams III challenges his convictions for aggravated
sexual assault of a child and indecency with a child. He asserts that the evidence is
insufficient to support his conviction on one count of aggravated sexual assault of a
child because the evidence of that offense came through the testimony of a nurse
who examined the complainant shortly after the incident and the complainant did
not testify regarding that offense at trial. Appellant also asserts that the trial court
erred in failing to charge the jury on the elements of an extraneous offense
admitted during the punishment phase of trial. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      At the time of the offenses for which appellant was convicted, the child-
complainant was eleven years old and appellant’s step-daughter. Appellant had
married the child’s mother only three days before.

      A medical problem had prompted the complainant’s mother to make an
emergency visit to the hospital. When the mother returned home, she heard music
coming from the couple’s bedroom and went upstairs. When she tried to open the
bedroom door, she felt appellant pressing his body against the door to keep her out.
The mother eventually pushed her way into the room and saw appellant attempting
to put on his pants and noticed the complainant – her pre-teen daughter – sitting in
their bed. After investigating further, the mother discovered the child was naked
from the waist down. Nervous about how appellant might react to her calling the
police, the mother took the child downstairs and called an ambulance for the
ostensible purpose of having appellant’s medications adjusted.              When the
ambulance arrived, the mother asked the paramedics to call the police.

      At the hospital, the complainant underwent a sexual-assault examination.
The child told the sexual assault nurse examiner (“SANE”) that appellant gave her
an alcoholic drink, marijuana, and a pill. She also told the nurse that appellant
fondled her, performed oral sex on her, put his penis in her mouth, and rubbed his
penis against her vagina.       During the examination, the nurse swabbed the
complainant’s labia and anus. Both sets of swabs contained proteins consistent
with semen. The labial swab contained a spermatozoon.


                                           2
      Appellant was arrested and indicted on three counts of aggravated sexual
assault of a child and one count of indecency with a child. With respect to
aggravated sexual assault of a child, appellant was charged by indictment in cause
number 13-CR-1806 with the offenses of (1) intentionally or knowingly causing
the penetration of the complainant’s mouth with his sexual organ and (2)
intentionally of knowingly causing the penetration of the complainant’s sexual
organ with his sexual organ. In cause number 13-CR-1916, appellant was charged
by indictment with the offenses of (1) aggravated sexual assault of a child for
causing the penetration of the complainant’s sexual organ with his mouth and (2)
indecency with a child for intentionally or knowingly causing the complainant to
engage in sexual contact by causing the hands of the complainant to touch
appellant’s genitals with the intent to arouse or gratify the appellant’s sexual
desire. Appellant was indicted in two separate causes that were consolidated for
the purposes of trial.

      Appellant testified that the complainant initiated sexual contact. He stated
he was asleep at the time and he believed the individual initiating contact was his
wife. Appellant admitted touching the complainant’s breast before realizing the
complainant was not his wife. Detective Mark Bonner testified that appellant
initially stated that if the complainant said the assault happened, then he guessed it
had occurred. At one point while speaking to Detective Bonner, appellant gave a
story consistent with his trial testimony. At another point, appellant stated that he
did not realize the complainant was not his wife until he performed oral sex on her.
Detective Bonner testified that appellant’s explanations were inconsistent.

      The jury found appellant guilty of all four counts. At the punishment phase
of trial, the State introduced evidence that appellant possessed images of child
pornography. Appellant requested an instruction on the elements of possession of

                                          3
pornography, which the trial court denied. The jury assessed punishment at forty-
five years’ confinement and a $10,000 fine on count one in the first cause,
confinement for life and a $10,000 fine on count two in the first cause, sixty years’
confinement and a $10,000 fine on count one in the second cause, and twenty
years’ confinement and a $7,500 fine on count two in the second cause. The trial
court ordered the sentences to run consecutively.

                                           ANALYSIS

       A. Sufficiency of the Evidence

       In his first issue, appellant asserts the evidence is insufficient to support his
conviction of aggravated sexual assault of a child for causing the penetration of the
mouth of the complainant, a child who was younger than fourteen years, by
appellant’s sexual organ.1 In evaluating a challenge to the sufficiency of the
evidence supporting a criminal conviction, we view the evidence in the light most
favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.
2000). The issue on appeal is not whether we, as a court, believe the State’s
evidence or believe that appellant’s evidence outweighs the State’s evidence.
Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may
not be overturned unless it is irrational or unsupported by proof beyond a
reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
The jury “is the sole judge of the credibility of the witnesses and of the strength of
the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
The jury may choose to believe or disbelieve any portion of the witnesses’
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When


1
  Although appellant challenges the sufficiency of the evidence as to only one count, we
conclude the evidence is sufficient to support appellant’s conviction for the other three counts as
well.

                                                4
faced with conflicting evidence, we presume the jury resolved conflicts in favor of
the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, we must affirm.         McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).

      As is relevant to the challenged conviction, a person commits aggravated
sexual assault if the person intentionally or knowingly causes penetration of the
mouth of a child younger than fourteen years of age by the sexual organ of the
actor. See Tex. Penal Code Ann. §22.021(a)(1)(B)(ii) (West, Westlaw through
2015 R.S.). The record reveals the following testimony presented at trial:

       The SANE who examined the complainant testified that the complainant
        was eleven years old. According to the SANE, the complainant stated
        that the complainant’s mother had a seizure and went to the emergency
        department. The complainant relayed that while her mother was gone,
        appellant offered her a drink, which she thought contained Dr. Pepper
        and vodka. Appellant also gave her a marijuana cigarette and a pill. The
        complainant stated that appellant began to fondle her breasts and he told
        her to give him a “hand job.” Next, he told her to perform oral sex. The
        complainant stated that appellant got her drunk and high and so she
        complied. According to the SANE, the complainant explained that
        appellant performed oral sex on her and then “put in it,” which the
        complainant clarified meant that he put his penis in her mouth. The
        complainant stated that he then rubbed his penis on her vagina, but as he
        was rubbing on her, her mother came into the room. The SANE took
        swabs from different areas of the complainant’s body including the inner
        and outer parts of the labia majora. The SANE observed redness along
        the inside of the inner lips of the complainant’s vagina and down into the
        region at the bottom called the fossa navicularis.
       The complainant’s mother testified that she met appellant online and he
        moved into her home a few weeks later. The complainant’s mother lived
        with appellant for a month or two before they were married. Three or
        four days later, the complainant’s mother took an ambulance to the
        hospital because appellant was too drunk to drive her. She returned
        home later that evening, walked toward the master bedroom, and was
                                         5
   unable to open the door because appellant was blocking her by pressing
   his body against the lock and holding it closed. Eventually, when
   appellant let go, the complainant’s mother pushed open the door and saw
   appellant was not wearing pants or underwear and the complainant was
   sitting in the bed naked from the waist down. The complainant’s mother
   could see that the complainant did not seem lucid. Appellant seemed
   angry, so the complainant’s mother told him she was calling an
   ambulance to get appellant’s medications adjusted at the Veteran’s
   Administration. When the ambulance arrived, the complainant’s mother
   asked the paramedics to call the police.
 The complainant testified that appellant gave her marijuana and a pill.
  She testified several times that she could not remember everything that
  happened between her and appellant while her mother was at the hospital.
  She stated she could remember only half. The complainant testified that
  appellant told her to rub his penis and she did, that appellant rubbed his
  penis between her breasts while he took his hands and squeezed her
  breasts together, and that his penis touched her vagina and she felt it
  going inside. The complainant also testified that appellant kissed her
  vagina. The complainant denied that she kissed appellant anywhere other
  than his mouth. The complainant testified that she had no memory of law
  enforcement coming to her home and did not remember going to the
  hospital or telling anyone at the hospital about what happened, but she
  did remember waking up in a hospital bed. The complainant testified
  that appellant performed oral sex on her, but when asked if any other oral
  sex occurred, the complainant testified, “[n]ot that I can remember.”
  When asked directly if she performed oral sex on appellant, the
  complainant testified, “I don’t remember.”
 Detective Mark Bonner testified that the complainant struggled to
  disclose the incident with appellant. According to Detective Bonner, the
  complainant felt ashamed and was having a difficult time. He said that
  “you could tell she had been through a lot,” and explained that she put
  her head down and her distress in discussing the incident was apparent.
 Detective Bonner spoke with appellant, who stated that if the
  complainant said the incident occurred then he “guess[ed]” it had
  happened. Appellant initially stated that he was asleep when the
  complainant began touching him and he believed the complainant was his
  wife. At one point appellant stated that he realized the complainant was
  not his wife when he touched her breast. At another point in time,

                                  6
         appellant stated he did not realize the complainant was not his wife until
         he got ready to perform oral sex. Detective Bonner testified that
         appellant’s story was inconsistent. At trial, appellant maintained that the
         complainant initiated physical contact while he was asleep and he did not
         realize that it was the complainant until he touched her breast. Appellant
         denied any other inappropriate contact occurred.
       A forensic scientist testified that swabs taken from the complainant’s
        labia contained a spermatozoon.
       A forensic scientist in the toxicology section of the Texas Department of
        Public Safety crime laboratories testified that a clonazepam metabolite
        was detected in the complainant’s blood. Clonazepam is generic for
        Klonopin, a drug the complainant’s mother testified she took for seizures.
        According to the forensic scientist, Klonopin can lead to confusion and
        affect sensory input.
      Appellant asserts this evidence is insufficient to support his conviction for
aggravated sexual assault of a child by causing the penetration of the child’s mouth
by his sexual organ because at trial the complainant denied that she performed oral
sex on appellant. The record reveals that the complainant told the SANE that she
performed oral sex on appellant when the SANE interviewed the complainant
shortly after the incident.    The SANE’s testimony about the complainant’s
statements provided some evidence from which the jury reasonably could have
concluded that appellant penetrated the complainant’s mouth with his sexual organ.
At trial, the complainant stated that she could not remember everything that
occurred that night and testified that she could not remember performing oral sex
on appellant. Though the complainant’s trial testimony did not establish that she
performed oral sex on appellant, the jury was entitled to resolve the conflict
between the complainant’s trial testimony and the SANE’s testimony about the
complainant’s statements following the incident. See Turro, 867 S.W.2d at 47.
We presume that the jury credited the SANE’s testimony about the complainant’s
statement during the examination and that the jury resolved any inconsistency
between that statement and the complainant’s trial statement by concluding that the
                                         7
statement the complainant made to the SANE reflected the truth. See Bautista v.
State, 474 S.W.3d 770, 776 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(noting that jury could credit outcry statement and discredit recantation).

      Appellant argues that we should use a standard of review for evaluating the
sufficiency of the evidence established by the Fifth Court of Appeals in Clewis v.
State, 922 S.W.2d 126 (Tex. Crim. App. 2010), to evaluate the factual sufficiency
of the evidence, rather than using the standard for reviewing the sufficiency of the
evidence applicable after the Texas Court of Criminal Appeals abolished factual-
sufficiency review of criminal convictions. See Butcher v. State, 454 S.W.3d 13,
20 (Tex. Crim. App. 2015) (noting that the high court “abolished factual-
sufficiency review as it applies to criminal convictions” in Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010).        Appellant acknowledges that the Court of
Criminal Appeals overruled Clewis in Brooks, but nonetheless argues that the
factual-sufficiency-of- the-evidence standard of review provides a better review of
the sufficiency of the evidence in criminal cases because under a legal-sufficiency
review, evidence that is unreliable is allowed to be used to sustain a conviction.
We need not address appellant’s arguments for overruling current Court of
Criminal Appeals precedent and returning to prior precedent. Under principles of
stare decisis, this court is bound to follow the precedent established by the Court of
Criminal Appeals. See Gardner v. State, 478 S.W.3d 142, 147 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d).       We must apply the current standard
articulated by the Court of Criminal Appeals for reviewing the sufficiency of the
evidence. See id.

      Under the applicable standard of review, the SANE’s testimony about the
complainant’s statements is sufficient evidence from which the jury reasonably
could have concluded appellant intentionally or knowingly caused the penetration

                                          8
of the complainant’s mouth by appellant’s sexual organ. See Carr v. State, 477
S.W.3d 335, 340–41 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); Bautista,
474 S.W.3d at 776. Accordingly, we overrule appellant’s sufficiency challenge.

      B. Request to Charge Jury on Elements of Extraneous Offense Admitted
      During Punishment Phase
      In his second issue, appellant asserts that the trial court erred in failing to
charge the jury during the punishment phase as to the elements of possession of
child pornography, an unadjudicated offense of which the State introduced
evidence.   In reviewing a complaint of jury-charge error, we first determine
whether error occurred and, if we find error, then we evaluate whether the error
caused sufficient harm to require reversal. See Ngo v. State, 175 S.W.3d 738, 743
(Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984). The State may offer evidence of extraneous offenses during the punishment
phase of the trial. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West, Westlaw
through 2015 R.S.). The trial court must charge the jury that it can consider such
evidence only if it finds beyond a reasonable doubt that the defendant committed
the offenses. See Huizar v. State, 12 S.W.3d 479, 483–84 (Tex. Crim. App. 2000).
The trial court did so. The State need not prove all the elements in an extraneous
offense for the offense to be admissible. Haley v. State, 173 S.W.3d 510, 515
(Tex. Crim. App. 2005); Spence v. State, 795 S.W.2d 743, 759 (Tex. Crim. App.
1990). The State has a lower burden of proof when it offers evidence about
extraneous offenses during the punishment phase of trial because extraneous
offenses are used to show a defendant is a future danger to society rather than that
a defendant is guilty of the charged offense. Powell v. State, 898 S.W.2d 821, 830
(Tex. Crim. App. 1994). Because the State need not prove every element of the
offense, there is no requirement that the jury can find the commission of an
extraneous offense during the punishment phase only if the State proves each and

                                         9
every element beyond a reasonable doubt. See Gomez v. State, 380 S.W.3d 830,
839 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Accordingly, the trial
court need not charge the jury on each and every element of an extraneous offense
offered during the punishment phase. See id. Because the trial court did not err in
refusing appellant’s request to charge the jury on the elements of the extraneous
offense of possession of a child pornography, we overrule appellant’s second issue.

                                   CONCLUSION

      Appellant’s convictions are supported by sufficient evidence. The trial court
did not err in refusing to instruct the jury as to the elements of an extraneous
offense of which there was evidence during the punishment phrase of trial. Having
overruled appellant’s issues, we affirm the trial court’s judgments.




                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown.
Publish — TEX. R. APP. P. 47.2(b).




                                         10
