Opinion filed April 5, 2012




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-11-00138-CR
                                         __________

                        DANIEL GLENN CRIPPEN, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 42nd District Court

                                      Taylor County, Texas

                                  Trial Court Cause No. 24043A


                                          OPINION

       The jury convicted Daniel Glenn Crippen of aggravated sexual assault of a child younger
than fourteen years. The trial court found that the child was under the age of six and assessed
punishment at twenty-five years confinement in the Institutional Division of the Texas
Department of Criminal Justice. Crippen challenges his conviction in a single issue. We affirm.
       Crippen’s conviction for aggravated sexual assault of a child arises from his act of
engaging in sexual contact with his girlfriend’s four-year-old daughter, B.R., by penetrating her
vagina with his finger. B.R.’s pre-K teacher took B.R. to the hospital after B.R. showed her that
she had blood in her underwear and told her that a bad man snuck into her room the night before
and put one hand on the bed and one hand in her underwear and hurt her. Initially, Crippen
denied that he penetrated B.R. and told police that he and B.R.’s mother thought someone must
have broken into the house and hurt B.R. However, Crippen changed his story during his
interview with police and admitted that his finger went inside B.R., but he said that it was an
accident. Crippen testified that he came home from work, made something to eat, and went
down the hall to check on the kids before going to bed. He saw B.R. on the floor and went into
her bedroom to pick her up and put her back in bed. When he picked her up, she started
wiggling and twisting, and he almost dropped her. Crippen realized his finger was inside her
vagina, but he did not mean for it to happen. He testified that it was an accident and that he did
not touch B.R. in a sexual way. He admitted that he initially lied because he was scared and did
not think that anyone would believe him.
        The SANE nurse who treated B.R. at the hospital testified that B.R. told her a man with
hairy hands wearing a mask with a giraffe on the top came into her room and put his fingers
inside of her and twisted them. She found three points of injury on B.R., including the complete
transection of B.R.’s hymen, and testified that B.R.’s story was consistent with those injuries.
The multiple points of injury and the extensive nature of the injuries were not consistent with an
accident because “[y]ou don’t see accidents where the hymen is actually torn.” B.R. testified
that Crippen was the man who came into her room and hurt her.
        Crippen requested a jury instruction on the offense of injury to a child. The trial court
denied Crippen’s request, and Crippen objected to the charge. Crippen timely appealed. In a
single issue, he alleges that the trial court erred by refusing to submit the lesser included offense
of injury to a child.
        An offense is a lesser included offense if (1) it is established by proof of the same or less
than all the facts required to establish the commission of the offense charged; (2) it differs from
the offense charged only in the respect that a less serious injury or risk of injury to the same
person, property, or public interest suffices to establish its commission; (3) it differs from the
offense charged only in the respect that a less culpable mental state suffices to establish its
commission; or (4) it consists of an attempt to commit the offense charged or an otherwise
included offense. TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).



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       To determine whether Crippen was entitled to an instruction on the offense of injury to a
child, we must compare the statutory elements of aggravated sexual assault of a child younger
than fourteen, as modified by the particular allegations in the indictment, with the statutory
elements of the offense of injury to a child and determine whether “the proof for the offense
charged includes the proof necessary to establish the lesser-included offense and [whether] there
is some evidence in the record that would permit a jury rationally to find that if the defendant is
guilty, he is guilty only of the lesser-included offense.” Hall v. State, 225 S.W.3d 524, 536 (Tex.
Crim. App. 2007) (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). The
controlling factor is whether the lesser included offense could be proven by the same facts
necessary to establish the offense charged. Mello v. State, 806 S.W.2d 875, 878 (Tex. App.—
Eastland 1991, pet. ref’d) (citing Jones v. State, 586 S.W.2d 542 (Tex. Crim. App. 1979)).
       Crippen was charged with aggravated sexual assault of B.R., a child younger than
fourteen, by causing his finger to penetrate the sexual organ of B.R. To prove aggravated sexual
assault as alleged in the indictment, the State had to show that Crippen intentionally and
knowingly caused the penetration of B.R.’s sexual organ with his finger and that B.R. was a
child under fourteen years of age at the time of the assault. See TEX. PENAL CODE ANN.
§§ 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2011). To prove the offense of injury to a child, the
State would have to show that Crippen intentionally, knowingly, recklessly, or with criminal
negligence caused B.R. serious bodily injury; serious mental deficiency, impairment, or injury;
or bodily injury. See TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2011). The offense of
injury to a child requires the additional element of bodily or mental injury for conviction.
“Evidence of penetration does not constitute evidence of bodily injury.”         Wilson v. State,
Nos. 12-02-00042-CR, 12-02-00043-CR, 2003 WL 21771766, at *7 (Tex. App.—Tyler July 31,
2003, no pet.) (mem. op., not designated for publication). Therefore, the offense of injury to a
child cannot be proven by the same facts necessary to prove aggravated sexual assault of a child
younger than fourteen years.
       Although the evidence in this case showed that B.R. was injured because of the sexual
assault, the State was not required to prove that B.R. was injured in order to secure a conviction
for aggravated sexual assault of a child. “The relevant inquiry is not what the evidence may
show but what the State is required to prove to establish the charged offense.” McKithan v.
State, 324 S.W.3d 582, 593 (Tex. Crim. App. 2010).

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       In addition, the offense of injury to a child does not differ from aggravated sexual assault
of a child under fourteen “only in the respect that a less serious injury or risk of injury to the
same person, property, or public interest suffices to establish its commission” because
aggravated sexual assault of a child under fourteen does not require any proof of injury. See
Article 37.09. Nor does injury to a child differ from the offense charged only in the respect that
a less culpable mental state suffices to establish its commission. See id. Furthermore, injury to a
child is not an attempt to commit aggravated sexual assault of a child under fourteen. See id.
Therefore, we hold that injury to a child is not a lesser included offense of aggravated sexual
assault of a child. We overrule Crippen’s sole issue.
       The judgment of the trial court is affirmed.




                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE


April 5, 2012
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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