AFFIRM and Opinion Filed this 31st day of January, 2013.




                                              In The
                                    Qtnirt of Appiahi
                          FiftI Ottrict of xai at a1ta
                                       No. 05-11-01443-CR

                        STEPHEN DAVID SILVEY, Appellant
                                                 V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 416th Judicial District Court
                                    Collin County, rrexas
                            Trial Court Cause No. 416-81013-07

                               MEMORANDUM OPINION
                          Before Justices Bridges, O’Neill, and Murphy
                                    Opinion by Justice O’Neill


        A jury convicted appellant Stephen David Silvey of aggravated sexual assault, indecency

with a child, and sexual performance by a child. He received a life sentence for the aggravated

sexual assault conviction and twenty years’ imprisonment for the other convictions. He raises

three issues on appeal. First, he claims the trial court abused its discretion when it failed to stay

all proceedings and order an examination to determine whether he was competent to stand trial.

Second, the State improperly pleaded for the jury’s sympathy during closing argument of the

guilt/innocence phase. And lastly, the trial court erred in submitting a charge allowing the jury

to find him guilty of penetrating the sexual organ of the victim because the evidence was

insufficient to support the allegation. We affirm the trial court’s judgment.
                                       Factual Background

       Appellant and complainant’s father attended college together and became good friends,

Appellant visited the Lirnily regularly and continued to visit throughout the years even after the

family moved from Louisiana to Texas.

       During an investigation of an unrelated case involving appellant in Illinois, the

complainant’s name came up. An Illinois detective contacted the Piano Police Department and

asked for assistance in contacting complainant’s family. Complainant was later interviewed and

admitted appellant abused her. She said her first recollection of the abuse was in kindergarten.

She said almost every time appellant stayed with her family he would try to have sex with her.

He also took nude photographs of her. The last time she remembered anything happening with

appellant was in the seventh grade.

       Appellant was charged with six counts of aggravated sexual assault of a child, indecency

with a child, and sexual performance by a child. At the conclusion of trial, the State abandoned

three counts of the indictment and the remaining three were submitted to the jury. The jury

found him guilty of the remaining charges. This appeal followed.

                                   Competency to Stand Trial

       In his first issue, appellant argues the trial court abused its discretion by failing to stay all

proceedings in the case and order an examination to determine his competency to stand trial.

The State responds the trial court ordered an examination, and appellant’s complaint is satisfied

by the record. We agree.

       A defendant is presumed to be competent to stand trial unless proven incompetent by a

preponderance of the evidence. TEx. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2006).
A person is incompetent to stand trial if he does not have sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding, or a rational as well as factual

understanding of the proceedings against him. TEx. CODE CRIM. PROC. ANN. art. 46B.003. If

evidence suggesting the defendant may be incompetent comes to the trial court’s attention, it

must determine by informal inquiry whether there is some evidence from any source that would

support a finding that the defendant may be incompetent to stand trial. Id. art. 46BM04(c). A

competency inquiry is not required, however, unless the evidence is sufficient to create a hona

fide doubt in the mind of the judge whether the defendant is legally competent. Rojas v. State,

228 S.W.3d 770, 771 (Tex. App.—Amarillo 2007, no pet.). Evidence is usually sufficient to

create a bona fide doubt regarding competency if the defendant shows recent severe mental

illness, suffers moderate mental retardation, or engages in truly bizarre acts. Id.

       We review a trial court’s decision not to conduct a formal competency hearing for an

abuse of discretion, Moore r’. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A trial court

abuses its discretion if its decision is arbitrary or unreasonable. Lawrence v. State, 169 S.W.3d

319, 322 (Tex. App.—Fort Worth 2005, pet. ref’d).

       The record shows appellant’s counsel filed a pretrial motion for competency examination

of defendant alleging appellant had suffered “numerous head injuries in the past and he seems

unable to focus on the issues that confront him at this trial.” Counsel further argued appellant

seemed incapable of understanding the proceedings against him and could not effectively

communicate with counsel. The trial court signed an order granting the motion.

       Appellant argues that once the trial court signed the order, the record is silent as to any

further inquiries or examinations into his competency as required under article 46B.005(a). See

TEx. CODE CRIM. PROC. ANN. art. 46B.005(a) (“If after an informal inquiry the court determines




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that evidence e\ists to support a finding of I ncoinpetencv. the court shall order an examination

under Subchapter B to determine whether the defendant is competent to stand trial in a criminal

case.’’).    Appellant is incorrect.   The ree rd contains an invoice from Dr. Kelly R. Goodness

stating she “has completed her work as court ordered in Mr. Silvey’s case.” The invoice states

she performed prolessional services testing and scoring, performed a psychological evaluation,

and consulted with appellant’s attorney on several occasions from August 26, 201 1 to September

22, 201 1. Accordingly, the record shows the trial court ordered a competency examination and

appellant underwent an examination. Thus, the trial court did not abuse its discretion by failing

to follow the procedural mandates of article 46B.005(a) of the Texas Code of Criminal

Procedure. Appellant’s first issue is overruled.

                                        Improper Jury Argument

            In his second issue, appellant contends the State made an improper argument by pleading

for the jury’s sympathy during closing of the guilt/innocence phase of the trial.            The State

responds appellant failed to preserve his issue for review, or alternatively, the argument was a

proper response to defense counsel’s argument and a plea for law enforcement,

            During appellant’s closing argument, defense counsel made the following statements:

                          I took my little girl to school this morning. I love her more
                   than anything. I’m not a proponent of child abuse. You have no
                   idea how much I love that little girl, hut I took an oath to this court
                   to prove cases beyond a reasonable doubt and you took the same
                   oath.

                                                    ***

                           Guys, I’m asking you to send a message. Those are two
                   fine prosecutors right there. This is a fine judge. The only thing
                   lacking here is probably me, but I implore you to do the right
                   thing, not more. Not what your gut tells you to do but what the
                   law tells you to do. I’m begging you.
In response. the Slate argued during its rebuttal the following:

                         The defense said you must send a message.... When the
                defense talks about how he loves his little girl, well, I want to tell
                you. 18.0.1. 1 love you too. I love that you have strength. I love
                that you are not weak. I love that despite all your fears you had the
                courage to come into this courtroom and to talk to 12 strangers and
                to talk to me.

                      This defendant thought you were weak, but he didn’t know
                who you were because you found strength—

Defense counsel then objected” improper jury argument”               The trial court overruled the

objection.

       The State first argues appellant’s general objection was insufficient to preserve error. To

preserve a complaint for appellate review, a party must present to the trial court a timely request.

objection, or motion stating the specific grounds for the objection. TEx. R. An. 33.1. A general

“improper jury argument” objection is normally insufficient to preserve error. Kelly K State, 903

S.W.2d 809,811 (Tex. App. —Dallas 1995, pet. ref’d). However, if the circumstances show the

trial judge is aware of the substance of the objection, a general objection will not waive error. Id.

In some cases, the very nature of a prosecutor’s argument coupled with a general objection may

be sufficient to preserve error. Id.

       Assuming without deciding appellant’s objection was sufficient under these

circumstances, we conclude the trial court did not abuse its discretion in overruling it. See Nzewi

v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist] 2012, pet. refd) (reviewing

improper jury argument for an abuse of discretion). For jury argument to be proper, it must fall

into one of the following categories: (I) summation of the evidence; (2) reasonable deduction

from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law enforcement.

Id.




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         Tbe record is clear defense counsel first implored the jury to “send a message” and

follow the law, Defense counsel also injected the love of his little girl into the argument. Thus,

when the prosecutor argued in rebuttal that the jury should send a different message, a message

to complainant, and that the prosecutor loved the complainant and her strength, the State was

simply responding and answering opposing counsels arguments.                             The State’s response fell

within a proper category of jury argument.                   Accordingly, the trial court did not abuse its

discretion in overruling appellant’s objection. Appellant’s second issue is overruled.

                          Sufficiency of the Evidence to Support Jury Charge

         In his third issue, appellant argues the trial court erred when it submitted a disjunctive

jury charge allowing the jury to find him guilty of penetrating the sexual organ of complainant

when the evidence was insufficient to support the allegation. The State responds the evidence

was sufficient to support the jury charge. Alternatively, the State contends the trial court did not

err in submitting the penetration theory because there was sufficient evidence to support the

contact theory. Moreover, the State claims appellant was not harmed.

         We review the sufficiency of the evidence under the standard set out in Jackson v.

Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011),

cert. denied, 132 S. Ct. 1763 (2012). We examine all the evidence in the light most favorable to

the verdict and determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353

S.W.3d at 860. This standard recognizes “the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319.

Appellant clearly states in his brief he is not alleging his constitutional right to a unanimous verdict was violated, but
only that the jury was permitted to determine his guilt based on a manner for which there was insufficient evidence.




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                The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can

      choose to believe all, some, or none of the testimony presented by the parties. Chambers v.

      State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury’s determinations of

      credibility, and may not substitute our judgment fcr that of the fact finder. Brooks v. State, 323

       S W 3d 893 899 (fcx Cmn App 2010) (plurality op                       Km        State 29 S W 3d 556 562 (Tex

       Crim. App. 2000) (in conducting a legal sufficiency analysis, an appellate court “may not re

       weigh the evidence and substitute our judgment for that of the jury”), “Circumstantial evidence

       is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence

       alone can he sufficient to establish guilt.” Ilooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

       2007).

                When reviewing a trial court’s jury charge, we must first determine whether the charge

       given was erroneous. After reviewing the record, if sufficient evidence supports the allegation

       that appellant intentionally or knowingly penetrated the sexual organ of complainant, then the

       trial court did not err in submission of the jury charge and our analysis ends. If, however, the

       evidence is insufficient, we must then determine whether appellant was egregiously harmed by

       the error.
           2 An error results in egregious harm when it affects the very basis of the case, deprives

       the defendant of a valuable right, or vitally affects a defensive theory. Estrada v. State, 334

       S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.).

                In two separate paragraphs of the indictment, the State charged appellant with (1)

       intentionally and knowingly penetrating the female sexual organ of a child younger than the age

       of fourteen and (2) intentionally and knowingly causing contact of the female sexual organ of a



2
    Appellant did not object to the jury charge; therefore an egregious harm analysis is appropriate.




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child younger than the age of fourteen. Thx, PENAL CODE ANN. § 2202l(a)(l)(B)0),(iii) (West

Supp. 2012). Appellant moved for a directed verdict on this count, which the trial court denied.

        For purposes of section 22.02 I, penetration has been defined as “to enter into” or “pass

through.”   Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crirn. App. 1992) (citing WEBsTER’S

THIRD NEw INTERNATIONAL DICTIoNARY 1670 (198 1)).               The court of criminal appeals has

further stated:

                  In common parlance, mere contact with the outside of an object
                  does not amount to a penetration of it. But pushing aside and
                  reaching beneath a natural fold of skin into an area of the body not
                  usually exposed to view, even in nakedness, is a significant
                  intrusion beyond mere external contact.

Id.   Thus, it is not inaccurate to describe conduct as penetration if the contact with the

complainant’s anatomy could reasonably be regarded by ordinary English speakers as more

intrusive than contact with her outer vaginal lips. Cornet v. State, 359 S.W.3d 217, 226 (Tex.

Crim, App. 2012),        “[T]actile contact beneath the fold of complainant’s external genitalia

amounts to penetration within the meaning of the Aggravated Sexual Assault statue, since

vaginal penetration is not required, but only penetration of the ‘female sexual organ.” Steadman

v. State, 280 S.W.3d 242, 247—248 (Tex. Crim. App. 2009).             Proof of penetration may be

circumstantial or through the victim’s testimony alone. Vu/alan v. State, 791 S.W.2d 130, 134

(Tex. Crim. App. 1990) (en bane); Werner v. State, 05080l503-CR, 2010 WL 779336, at *11

(Tex. App.—Dallas Mar. 9, 2010, pet. ref’d) (not designated for publication).

        The evidence shows that Detective Beth Chancy with the Piano Police Department

interviewed complainant, who was fifteen years old at the time, at the Children’s Advocacy

Center of Collin County.          Detective Chancy admitted complainant never said appellant

penetrated her vaginaily; however, she testified complainant described being naked and appellant

on top of her trying to have sex. Complainant told her appellant’s penis touched her vagina.


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Complainant was clear appellant “wasn’t penetrating deep inside. He was trying to and she

struggled to not allow that to happen.”

       Complainant testified every time appellant came to her house, “he would try to have sex

with me.” She testified he took off their clothes, put his penis between her legs. and tried to get

inside her. She said it was always by force and when she tried to fight, he would sit on her hands

and legs and sometimes hit her.

       Viewed in the light most favorable to the verdict, the jury could infer based on the

evidence that appellant intentionally     or   knowingly caused the penetration of complainant’s

sexual organ with his sexual organ. Although complainant said appellant did      not   penetrate her

deeply, she described to the jury how they both were naked and appellant forcefully tried to put

his penis inside her. The jury could infer appellant’s penis made contact beneath the folds of her

sexual organ in his attempts to forcefully have sex with her. See e.g., Gonzalez v. State, 13-10-

308-CR, 2011 WI. 5282676, at *54 (Tex. App.—Corpus Christi Nov. 3, 2011) (mem. op., not

designated for publication) (testimony of victim that defendant touched her vagina with his penis

was legally sufficient to establish penetration of sexual organ under aggravated sexual assault

statute). The jury could further infer that at the time complainant talked with Detective Chancy,

she described legal penetration even though she did not use appropriate terminology. Moreover,

Christiana Chun, a friend of complainant, testified appellant told her he had sex with

complainant. Accordingly. the evidence is sufficient to support his conviction for aggravated

sexual assault of a child under the age of fourteen.

        Even if we concluded the evidence was insufficient to support the allegation that

appellant penetrated her sexual organ, the evidence is sufficient to support a conviction        for


contacting complainant’s sexual organ.          One indictment may allege differing methods       of




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committing the same offense. Kitchens            t   State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)

(en bane). And even though the indictment may allege the differing methods of committing the

same offense in the conjunctive, it is proper for the jury to he charged in the disjunctive, Id. “it

is appropriate when the alternate theories of committing the same offense are submitted to the

jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to

support a finding under any of the theories submitted,” Id.

         As previously noted, appellant has not argued any error in the submission of the jury

charge or that his rights to a unanimous verdict were violated. The record is clear appellant

contacted complainant’s sexual organ with his penis.                    Detective Chancy and complainant

unequivocally testified his penis touched her vagina. Because the jury returned a guilty verdict

on an indictment alleging multiple acts in the conjunctive, the verdict must stand when the

evidence is sufficient with respect to any of the acts charged. See Young v. State, O5-93OO655-

CR, 1995 WL 5873, at *3_4 (Tex. App.—Dallas Jan. 5, 1995, no pet.) (not designated for

publication) (concluding evidence was sufficient to support attempted sexual assault even though

charge allowed jury to find defendant guilty of either attempted sexual assault or sexual assault);

see also Bailey v. State, 532 S.W.2d 316, 323 (Tex. Crim. App. 1975) (“Where a general verdict

is returned, and the evidence is sufficient to support a finding under any of the counts submitted,

no error is shown.”).
            3 The record is sufficient to support the charge of appellant’s sexual organ

contacting complainant’s sexual organ. Accordingly, appellant’s third issue is overruled.




We acknowledge that as a general rule, section 22.021 of the penal code criminalizes very specific acts, each
constituting a separate statutory offense. However, an exception exists to the general rule when one act necessarily
is subsumed by another such as contact and penetration. See Tyson v. State, 172 S.W.3d 172, 178 (Tex. App.—Fort
Worth 2005, pet. ref”d).




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                                         Conclusion


       Having overiulcd appellant s algtlrnLnts th judgmcnt ot thc   Hi ii   cotilt is athirnd




Do Not Publish
TEx, R. App. P. 47

II 1443F.U05




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                                 Iøiirt øf Appiat
                        3JiftI! 1itrirt uf Jixa at ki11a
                                        JUDGMENT

Stephen David Silvey, Appellant                     On Appeal from the 4 16th Judicial District
                                                    Court, Collin County, Texas
No. O5l lOl443CR                                    Trial Court Cause No, 4168lOl3M7.
                                                    Opinion delivered by Justice O’Neill.
The State of Texas, Appellee                        Justices Bridges and Murphy participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 31st day of January, 2013.




                                                   Michiei J. o’Neill
                                                   .JLI’,tI(•L
