                                NO. 07-11-0235-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                     PANEL B

                                   JUNE 8, 2012


                             JERREMIE JASON WILLIS,

                                                              Appellant
                                          v.

                              THE STATE OF TEXAS,

                                                              Appellee
                        _____________________________

           FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

             NO. 21,278-C; HONORABLE ANA ESTEVEZ, PRESIDING


                              Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant Jerremie Jason Willis was convicted of continuous sexual abuse of a

child and aggravated sexual assault of a child and sentenced to twenty-five years

imprisonment for each offense. He now contends the trial court erred in 1) failing to

instruct the jury on aggravated sexual assault as being a lesser-included offense to

continuous sexual abuse, and 2) cumulating his sentences. We affirm the judgments.
       Background

       After his divorce in January 2008, appellant had primary custody of his two

daughters, S.G., who was nine years old, and H.W., who was seven years old. Soon

after, he began to have vaginal, oral, and anal sexual relations with S.G. over a two-

year period.1 At some point, he also had vaginal intercourse with H.W. After two years,

S.G. made an outcry to her mother and grandmother.

       Issue 1 – Instruction on Lesser Offense

       Appellant requested that the trial court inform the jury about the possibility of

finding him guilty of aggravated sexual assault as a lesser-included offense to

continuous sexual abuse. The request was denied. That decision was purportedly

wrong because aggravated sexual assault should always be submitted as a lesser

offense when one is being tried for continous sexual abuse. We overrule the issue.

       A person is entitled to a charge on a lesser-included offense if 1) the elements of

the lesser offense are included within the proof necessary to establish the greater

offense, and 2) some evidence appears of record that would permit a jury to rationally

conclude that if appellant is guilty of anything, it is only of the lesser offense. Rousseau

v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Furthermore, the “some

evidence” alluded to is not satisfied when the defendant simply denies the commission

of any crime.     Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).                   Here,

appellant did just that, he defended himself by indicating he committed no offense. For

instance, he attacked the credibility of the complaining witnesses, the forensic


       1
         The sexual assault nurse examiner testified that S.G. had wearing down of her hymen consistent
with repeated long-term penetration.

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interviewer, and the sexual assault nurse examiner. He also suggested that another

male in the house, who had access to the children, committed the assaults. Given the

nature of his defense and his failure to cite us to any evidence suggesting that his

assaults against his daughter were not continuous or multiple, he was not entitled to the

requested instruction.

       Issue 2 – Cumulation of Sentences

       In his next and last issue, appellant argues that the portion of the judgment

cumulating his two sentences should be removed. This is purportedly so because the

trial court did not specify, when pronouncing sentence in open court, which sentence

would run first. We overrule the issue.

       The two offenses at issue were charged via the same indictment and tried

together. After the guilty verdicts were returned and the punishment derived by the jury,

the trial court expressly pronounced appellant’s guilt and sentence applicable to count

one first. Then it pronounced guilt and the sentence applicable to count two. And, upon

hearing argument regarding whether to stack the sentences, it orally pronounced that

the State’s motion to so stack them was granted and that the sentences would be

cumulative. Those circumstances were akin to the ones in Madrigal-Rodriguez v. State,

749 S.W.2d 576 (Tex. App.–Corpus Christi 1988, pet. ref’d) and deemed a legally

sufficient pronouncement of the court’s intent to cumulate the sentences. Id. at 580.

But, unlike the situation in Madrigal-Rodriquez, we need not reform the judgment here

to reflect the trial court’s intent. The latter was already incorporated into the pertinent

decree.



                                            3
      Having overruled each issue, we affirm the judgment.



                                             Brian Quinn
                                             Chief Justice

Do not publish.




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