                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00094-CR



         MICHAEL CHARLES HILL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 26,410




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                   MEMORANDUM OPINION
        Michael Charles Hill was convicted by a jury of indecency with a child by sexual

contact. 1   Hill was sentenced to life imprisonment after a finding of true on the State’s

enhancement allegation. On appeal, Hill argues that the judgment was not supported by legally

sufficient evidence and that the State failed to give written notice of its intent to “seek an

enhanced penalty because of a prior felony conviction.” We affirm the trial court’s judgment

because we find that it was supported by legally sufficient evidence and that the State provided

notice with respect to the enhancement allegations.

(1)     Legally Sufficient Evidence Supported Hill’s Conviction

        In evaluating legal sufficiency, we review all of the evidence in the light most favorable

to the jury’s verdict to determine whether any rational jury could have found the essential

elements of indecency with a child by sexual contact beyond a reasonable doubt. Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)

(citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–

18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate



1
 In our cause number 06-12-00095-CR, Hill appeals from a conviction of sexual assault of a child entered on the
same date.

                                                      2
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        Hill committed the offense of indecency with a child by contact if he engaged in sexual

contact with a child or caused her to engage in sexual contact with him, when she was younger

than seventeen years of age. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). Sexual

contact means “any touching of any part of the body of a child, including touching through

clothing, with the anus, breast, or any part of the genitals of a person” “if committed with the

intent to arouse or gratify the sexual desire of any person.” TEX. PENAL CODE ANN. § 21.11(c)

(West 2011). The State’s indictment alleged that Hill “with intent to arouse or gratify” his

sexual desire “intentionally or knowingly engage[d] in sexual contact with JANET SMITH

(PSUEDONYM), by touching the breast of JANET SMITH (PSUEDONYM), a child younger

than 17 years of age.”

        On appeal, Hill challenges only the element of identity. Hill’s briefing states:

        The child complainant testified that she was sleeping when the attacks occurred.
        If this is true then she would have no way of knowing who her assailant was and
        any claim that the Appellant was her attacker would be pure rank speculation.
        Thus, there is a failure of proof of identity to convict the Appellant in this cause.
                                                 3
This argument is based on a mischaracterization of the evidence. Smith testified that she was

living with her father, Hill, when she was thirteen years old. One night, Hill came into her room

while she was sleeping and “touched” her, waking her up. Smith “was acting like [she] was

asleep” while “being felt on” “because [she] was scared.” Smith specifically testified that she

had seen Hill during the incident when her “eyes peeped open a little.” Hill was touching her

breasts and “feeling up my shirt and stuff.”

       “The testimony of a child victim alone is sufficient to support a conviction for

. . . indecency with a child.” Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006,

pet. ref’d); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no pet.); Lee v.

State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex.

Crim. App. 2006); see TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2012). Smith’s

testimony was sufficient to supply the challenged element of identity.

       We overrule this point of error.

(2)    The State Gave Notice of Its Intent to Enhance Hill’s Sentence

       Hill also argues that his sentence is improper “[b]ecause of a lack of notice of

enhancement.” Hill’s trial began April 12, 2012. On the same date, the State filed an amended

notice of its intent to enhance punishment “pursuant to Section 12.42(b).” The notice stated:

       [Hill] has a previous conviction for Aggravated Sexual Assault of a Child under
       14, this increases the range of punishment from a second degree felony, as alleged
       in the indictment, to a first degree felony, from 5 years to life in TDCJ-ID.

              The offense we are using for the enhancement is: Aggravated Sexual
       Assault of a Child Under 14, for which the Defendant, Michael Charles Hill, was

                                                4
        convicted on or about May 5, 2000, in Cause No. F-9970647-NVN in the 195th
        Judicial District Court of Dallas County, Texas.

        During voir dire, the trial court informed the prospective jurors that the State had “also

said that if a defendant has already been to prison for a felony in this state or any other state, it

enhances or it raises the range of punishment.” The panel was questioned about whether they

could assess a life sentence if it was proven that Hill had previously committed “another crime,”

such as aggravated sexual assault of a child that “under certain circumstances would be subject

to an automatic life sentence.” There was no objection to the enhancement, and the following

discussion established that Hill was made aware that the State would attempt to enhance his

punishment:

               THE COURT: . . . . Have the parties had an opportunity to discuss [what]
        the proper range of punishment is or might be?

               MS. AIKEN: Yes, Your Honor. . . . I realize the enhancement letter that I
        had filed had to be refiled. I refiled it. And it currently has the correct
        enhancement, which is lesser than what I originally told the defense it would be.

                It will now be a second degree enhanced to a first because the automatic
        life provision did not prevail before September 1.

                 THE COURT: Do you agree with that?

                 MR. CORNUAUD: Yes, Your Honor.

Further, Hill pled not true to the enhancement paragraph.

        Hill does not complain of the timeliness or sufficiency of the notice. 2                      Rather, he

mistakenly complained that there was “no other written form of notice seeking enhanced


2
 “[P]rior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment.”
Villescas v. State, 189 S.W.3d 290, 292 (Tex. Crim. App. 2006) (quoting Brooks v. State, 957 S.W.2d 30, 34 (Tex.
                                                        5
punishment as to this cause number found anywhere in the appellate record.” Because the record

contains written notice of the State’s intent to enhance Hill’s punishment, we find Hill’s

complaint to be without merit. We overrule this contention.

        We affirm the trial court’s judgment.



                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:           December 27, 2012
Date Decided:             January 8, 2013

Do Not Publish




Crim. App. 1997)). Further, notice does not have to be given in advance of trial. Id. at 293. “[W]hen a defendant
has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare
one, notice given at the beginning of the punishment phase satisfies the federal constitution.” Id. at 294.
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