Opinion filed September 29, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                       Nos. 11-10-00027-CR & 11-10-00028-CR
                                     __________

                       JAMES ALLEN SULLIVAN, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 35th District Court

                                     Brown County, Texas

                            Trial Court Cause Nos. 19690 & 18971


                            MEMORANDUM OPINION

       The jury convicted James Allen Sullivan of the offenses of sexual assault and sexual
assault of a child: one count of sexual assault against A.S. and one count of sexual assault of a
child against C.C. in trial court cause no. 19690 (our Cause No. 11-10-00027-CR) and two
counts of sexual assault of a child against N.P. in trial court cause no. 18971 (our Cause No. 11-
10-00028-CR). The jury assessed punishment for each count at confinement for eighteen years.
The trial court ordered that the sentences in cause no. 18971 are to run concurrently and that each
sentence in cause no. 19690 is to run consecutively to each other and to the sentences imposed in
cause no. 18971. We modify and affirm.
       Appellant presents two issues on appeal. In his first issue, appellant contends that the
evidence is factually insufficient to support his convictions. In the second issue, appellant asserts
that the trial court improperly cumulated his sentences because one of the complainants was not
under the age of seventeen.
                                             Sufficiency of the Evidence
       We note at the outset of our analysis of appellant’s first issue that the Texas Court of
Criminal Appeals has now held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that
there is “no meaningful distinction between the Jackson v. Virginia1 legal-sufficiency standard
and the Clewis2 factual-sufficiency standard”; that 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”; and that “[a]ll other cases to the contrary, including Clewis, are overruled.” Brooks, 323
S.W.3d at 895, 902, 912 (footnotes added). Accordingly, a challenge to the factual sufficiency
of the evidence is no longer viable. We also note that appellant did not have the benefit of the
opinion in Brooks when he filed his briefs. We will review appellant’s factual sufficiency
challenge under the legal sufficiency standard set forth in Jackson v. Virginia. Under this
standard, we must review all of 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 crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
       In his brief, appellant concedes that the evidence is legally sufficient, under the
Jackson v. Virginia standard, to support the jury’s verdicts as to the offenses committed against
N.P. We agree.
       N.P. testified that appellant penetrated her vagina with his fingers and engaged in sexual
intercourse with her while she was confined in the Ron Jackson facility of the Texas Youth
Commission and living in the Freedom Dorm, where appellant was employed as a juvenile
correctional officer, JCO-5, with JCO-6 being the highest ranking officer at the dorm. Appellant



       1
        Jackson v. Virginia, 443 U.S. 307 (1979).
       2
           Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

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was the acting dorm supervisor when the JCO-6, Wanda Drew, was out of the office. During the
time period in question, Drew was out quite often due to illness.
        Appellant was also convicted of sexually assaulting A.S. by penetrating her sexual organ
with his finger without her consent. The record shows that A.S. was sent to TYC as a juvenile
and to the Freedom Dorm of the Ron Jackson facility in the fall of 2003. In the spring of 2004,
when A.S. was seventeen years old, appellant began showing special attention to her and making
inappropriate sexual comments. On one occasion, appellant requested that A.S. be the first to
shower during shower routine and then directed A.S. to go to the supply closet. While A.S. was
working in the closet, appellant told her to scoot the stool to the left of the doorway, get on the
stool, and drop her shorts. She complied. Appellant stood at the doorway of the closet and then
inserted his finger into A.S.’s vagina. Appellant positioned himself such that he was facing the
dayroom and could see someone coming into the dayroom. The encounter lasted no more than a
minute because appellant noticed that someone had walked into the dayroom.
        Because A.S. was not a child for purposes of the sexual assault statutes, consent was an
issue. The trial court instructed the jury with respect to the count involving A.S that consent
means “assent in fact, whether express or apparent,” and that coercion means either (1) “a threat
however communicated to expose a person to hatred, contempt, or ridicule” or (2) “to take or
withhold action as a public servant, or to cause a public servant to take or withhold action.” A.S.
testified that she consented to appellant putting his finger into her vagina because she was scared
and did not believe she could prevent him doing it because he was a staff member. A.S. testified
that appellant told her not to tell, indicating that she would get more time and that he would get
in trouble.
        Appellant was also convicted of sexually assaulting C.C., a child, by penetrating her
sexual organ with his finger. C.C. testified that she had been committed to TYC in 2002 and
that, from 2003 to 2004, she lived in the Freedom Dorm where appellant worked. She testified
that appellant took a special interest in her and gave her extra privileges. Appellant also gave her
Xanax pills a few times, which he said had been prescribed for him. C.C. testified that she was
in the supply closet folding clothes the first time appellant digitally penetrated her. C.C. said that
appellant told her to pull down her pants and face the shelf. She complied. Appellant stood
halfway in the hall so that part of him could still be seen by the surveillance camera, reached his
hand around into the closet where there was no surveillance camera, and put his fingers into

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C.C.’s vagina. Appellant called C.C. to the closet on another occasion and digitally penetrated
her again. Appellant asked her if she had ever dated older men and discussed taking their
relationship to the next level. One time, appellant directed C.C. to go in the closet, stand toward
the back of the closet, and rub lotion on her vagina. Again, she complied. She had her pants
down and was leaning over the cabinets when appellant came in and started to insert his penis
into her vagina. However, appellant got nervous and quit when he heard an announcement on
his radio that someone was being brought back from the infirmary.
       At trial, appellant denied having any inappropriate sexual contact with the juvenile
offenders at TYC. Appellant specifically denied having any inappropriate sexual contact with
N.P., A.S., and C.C. Appellant testified that he did not insert his finger or his penis into N.P.’s
vagina. Appellant also denied furnishing Xanax pills to the girls, but he admitted that he had had
a prescription for Xanax. Appellant also admitted that he had had a vasectomy, corroborating
N.P.’s testimony that appellant told her she could not get pregnant because he had had “some
type of surgery.” Appellant called three witnesses who worked with appellant at TYC, including
his supervisor, to testify on his behalf. These witnesses were of the opinion that appellant was
truthful but that the particular girls who testified against appellant were not truthful.
       We hold that the evidence is sufficient to support the jury’s verdict as to each conviction.
Our review of the record reflects that N.P., A.S., and C.C. gave similar testimony regarding how
appellant treated them and where and how the assaults occurred. As to each conviction, a
rational trier of fact could have found the essential elements of the particular crime to be true
beyond a reasonable doubt. The jury, as the trier of fact, was the judge of the credibility of the
witnesses and the weight to be given their testimony. Appellant’s first issue is overruled.
                                       Consecutive Sentences
       In his second issue, appellant argues that the stacking of his sentences was improper. The
State concedes that, because A.S. was not younger than seventeen years of age, the sentence in
the count involving A.S. cannot run consecutively to the other sentences. See TEX. PENAL CODE
ANN. § 3.03 (Vernon 2011). Pursuant to Section 3.03(a), when an accused is tried in a single
criminal action and is found guilty of more than one offense arising out of the same criminal
episode, the sentences – with a few exceptions – shall run concurrently. One of the exceptions,
however, provides that the sentences may run concurrently or consecutively if each sentence is
for a conviction of a specific type of offense, including sexual assault, that was “committed

                                                   4
against a victim younger than 17 years of age at the time of the commission of the offense
regardless of whether the accused is convicted of violations of the same section more than once
or is convicted of violations of more than one section.” Id. § 3.03(b)(2)(A). The trial court
improperly stacked the sentence from the sexual assault conviction involving A.S. because she
was already seventeen at the time of the offense and, thus, was not “younger than” seventeen.
       The Texas Court of Criminal Appeals has held that a trial court’s unlawful cumulation
order is not reversible error and that the appropriate remedy on appeal is for the appellate court
to reform the judgment by deleting the improper cumulation order. Beedy v. State, 250 S.W.3d
107, 110, 115 (Tex. Crim. App. 2008). The judgment in cause no. 19690 reflects that the trial
court made the following special finding:
              The sentence imposed in Cause #CR19690 as to Count I shall begin
       when the judgment in the sentence imposed in Cause #CR18971 has ceased
       to operate. The sentence imposed in Cause #CR19690 as to Count II shall
       begin when the judgment in the sentence imposed in Cause #CR19690 Count
       I has ceased to operate.

The judgment in cause no. 18971 reflects that the trial court made the following special finding:
              Cause #CR18971 Count I and VI are to run concurrent. The sentence
       imposed in Cause #CR19690 as to Count I shall begin when the judgment in
       the sentence imposed in Cause #CR18971 has ceased to operate. The
       sentence imposed in Cause #CR19690 as to Count II shall begin when the
       judgment in the sentence imposed in Cause #CR19690 Count I has ceased to
       operate.

Consequently, the trial court’s judgments in both causes must be modified to delete the language
ordering cumulation of the sentence involving A.S.: Count I of cause no. 19690. Appellant’s
second issue is sustained.
                                       This Court’s Ruling
       The special finding in the judgment of the trial court in cause no. 19690 is modified to
read as follows:
              The sentences imposed in Cause #CR19690 Count I and Count II shall
       run concurrently with one another and shall begin to operate when the
       sentence imposed in Cause #CR18971, from the 35th District Court of Brown
       County, Texas, shall cease to operate.

The special finding in the trial court’s judgment in cause no. 18971 is modified to delete all of
the language following the first sentence, which shall read as follows: The sentences imposed

                                                5
in Cause #CR18971 Count I and VI are to run concurrently. As modified, the judgments of
the trial court are affirmed.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


September 29, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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