                                      NO. 07-10-0384-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                          JULY 8, 2011


                                RONALD LAWSON FRANS, II,

                                                                  Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                  Appellee
                              ___________________________

          FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

              NO. 10,249; HONORABLE WILLIAM D. SMITH, PRESIDING


                                    Memorandum Opinion


Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

      Appellant, Ronald Lawson Frans II, appeals his two convictions for aggravated

sexual assault of a child and his two convictions for indecency with a child. Through his

first several issues, he contends that the State failed to prove he penetrated the child’s

sexual organ as alleged in the indictment. His last two issues concern the accuracy of

the sentence memorialized in the written judgment; that is, it purports to levy fines for



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       John T. Boyd, Senior Justice, sitting by assignment.
each conviction though such fines went unmentioned when sentence was orally

pronounced in open court. We affirm the judgment as modified.

       Regarding whether the State proved appellant penetrated his victim’s sexual

organ, appellant admitted to rubbing the child’s clitoris. The clitoris lies within or under

the upper portions of the labia. Thus, rubbing it involved some measure of penetration

through the external folds of the labia into the vaginal cavity. And, because it did, the

record contained some evidence upon which a rational jury could deduce, beyond

resonable doubt, that appellant penetrated the child’s sexual organ. See Luna v. State,

515 S.W.2d 271, 273 (Tex. Crim. App. 1974) (noting that evidence of the slightest

penetration is sufficient to uphold a conviction, so long as it has been shown beyond a

reasonable doubt); see also Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App.

1992) (stating that mere contact with the outside of an object does not amount to a

penetration of it, but the 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 and sufficient to constitute penetration).

       As for the allegation concerning the variance between the sentence as

pronounced in open court and expressed in the written judgment, the record discloses

such a difference. The trial court orally pronounced the assessment of a $10,000 fine

viz Count I but failed to mention a fine when orally sentencing appellant on the

remaining three counts. Furthermore, the State agreed that this occurred and that it

constituted error.

       A defendant's sentence must be pronounced orally in his presence. Taylor v.

State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there is a conflict between



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the oral pronouncement and the written sentence appearing in the judgment, the former

controls. Id. Therefore, we modify the judgment to remove reference to the imposition

of $10,000 fines as part of the sentences relating to appellant’s convictions under

counts two, three and four of the indictment.

      The trial court’s judgment is affirmed as modified.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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