                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-03-00390-CR


NICHOLAS GEORGE KLEIN                                              APPELLANT

                                            V.

THE STATE OF TEXAS                                                      STATE


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            FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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             MEMORANDUM OPINION1 ON REMAND ON
          STATE’S PETITION FOR DISCRETIONARY REVIEW

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      Pursuant to rule of appellate procedure 50, we have reconsidered our

previous opinion on remand upon reviewing the State’s petition for discretionary

review.2 W e withdraw our August 12, 2010 memorandum opinion on remand,

dissenting memorandum opinion on remand, and judgment, and we substitute the

following.


      1
           See Tex. R. App. P. 47.4.
      2
           See Tex. R. App. P. 50.
      Following a jury trial, Appellant was convicted of eight counts of aggravated

sexual assault of a child. On original appeal, this court held that the evidence was

legally insufficient to support convictions on six counts and rendered an acquittal on

those counts.3 Regarding the remaining two counts, this court held that (1) the

evidence was legally and factually sufficient to support the convictions,4 (2) the

testimony of the designated outcry witness was admissible under the outcry

exception to the hearsay rule,5 (3) the admission of any testimony by the designated

outcry witness at trial that was not included in the summary of outcry witness

testimony given to Appellant prior to trial was not error,6 (4) any probative value of

impeachment testimony relating to the complainant’s testimony recanting her prior

outcry statement was substantially outweighed by its prejudicial effect,7 (5) the

testimony of the Child Protective Services (CPS) investigator and the police officer

was not admissible under the prior consistent statement exception to the hearsay

rule,8 and (6) the trial court’s error in admitting such testimony was not harmless.9


      3
          Klein v. State, 191 S.W .3d 766, 775 (Tex. App.—Fort Worth 2006) (Klein
I), rev’d, 273 S.W .3d 297, 298–99 (Tex. Crim. App. 2008) (Klein II).
      4
           Id. at 774, 778.
      5
           Id. at 780.
      6
           Id. at 781.
      7
           Id. at 783.
      8
           Id. at 784.
      9
           Id. at 785.

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      On the State’s original petition for discretionary review, the Texas Court of

Criminal Appeals held that the evidence was legally sufficient to support a finding

that Appellant had sexually assaulted the complainant (by touching her sexual organ

with his tongue and finger) “on at least four separate occasions”10 and that the

complainant’s out-of-court statements to the CPS investigator and police officer that

she had been sexually abused by Appellant were admissible as nonhearsay prior

consistent statements.11 The Texas Court of Criminal Appeals therefore remanded

the case to us for further proceedings. Because we already held that the evidence

is sufficient on two counts, the Texas Court of Criminal Appeals has held that the

evidence is sufficient on the remaining six counts and that the testimony of the CPS

investigator and police officer was properly admitted, and we now hold that the trial

court did not err by stacking the sentences, we affirm the trial court’s judgments.

      After this court issued its original opinions on remand, the Texas Court of

Criminal Appeals held “that there is no meaningful distinction between a Clewis [12]

factual-sufficiency standard and a Jackson v. Virginia [13] legal-sufficiency standard”

and that




      10
            Klein II, 273 S.W .3d at 303.
      11
            Id. at 317.
      12
            Clewis v. State, 922 S.W .2d 126 (Tex. Crim. App. 1996).
      13
            443 U.S. 307, 99 S. Ct. 2781 (1979).

                                             3
      the Jackson v. Virginia standard is the only standard that a reviewing
      court should apply in determining whether the evidence is sufficient to
      support each element of a criminal offense that the State is required to
      prove beyond a reasonable doubt. All other cases to the contrary,
      including Clewis, are overruled.14

      Accordingly, because this court already held the evidence sufficient under

Jackson to support Appellant’s convictions on Counts VII and VIII and the Texas

Court of Criminal Appeals already held the evidence sufficient under Jackson to

support the remaining six counts, we overrule Appellant’s first and second points.

      In his seventh and only remaining live point, Appellant contends that the trial

court erred by stacking seven probated sentences on top of a sentence of

incarceration. But Appellant relies on Green v. State,15 which has been superseded

by statute.16 Article 42.08 of the code of criminal procedure provides in relevant part,

      W hen the same defendant has been convicted in two or more cases,
      judgment and sentence shall be pronounced in each case in the same
      manner as if there had been but one conviction. . . . [I]n the discretion
      of the court, the judgment in the second and subsequent convictions
      may either be that the sentence imposed or suspended shall begin
      when the judgment and the sentence imposed or suspended in the
      preceding conviction has ceased to operate, or that the sentence




      14
        Brooks v. State, No. PD-0210-09, 2010 W L 3894613, at *1, 14 (Tex. Crim.
App. Oct. 6, 2010).
      15
            706 S.W .2d 653 (Tex. Crim. App. 1986).
      16
         See Pettigrew v. State, 48 S.W .3d 769, 772 & n.17 (Tex. Crim. App. 2001)
(noting that article 42.08 was amended after Green was handed down to allow the
stacking of, among other things, prison terms and periods of community
supervision).

                                           4
      imposed or suspended shall run concurrently with the other case or
      cases, and sentence and execution shall be accordingly . . . .17

In this case, Appellant was sentenced to ten-year terms on all eight counts, but the

sentences in his final seven counts were suspended. The trial court ordered that the

seven ten-year probated sentences would be served concurrently with each other

but consecutively to the ten-year sentence of confinement imposed on the first

count. The trial court had the discretion under the statute to so stack the sentences;

we therefore overrule Appellant’s seventh point.

      Because (1) we already held the evidence sufficient on two counts, (2) the

Texas Court of Criminal Appeals held the evidence sufficient on the remaining six

counts, (3) we are bound by the Texas Court of Criminal Appeals’s holding that the

testimony of the CPS investigator and the police officer was properly admitted, and

(4) we hold that the trial court did not err by stacking the sentences, we affirm the

trial court’s judgments on all eight counts.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

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

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

DELIVERED: December 2, 2010



      17
            Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2010).

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