                                   NO. 07-07-0036-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  FEBRUARY 27, 2009

                         ______________________________


                      ROBERT L. GONZALES, JR., APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-414463; HON. CECIL G. PURYEAR, PRESIDING

                         _______________________________

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


                               MEMORANDUM OPINION


      Appellant Robert L. Gonzales, Jr. appeals from his jury conviction of two counts of

aggravated sexual assault and the resulting concurrent sentences of life imprisonment for

each count. Appellant presents us with five points of error through which he urges




      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon 2005).
reversal. We affirm the trial court’s judgment as to Count I and vacate the trial court’s

judgment as to Count II.


                                       Background


       By a November 2006 indictment,2 appellant was charged with three counts of

aggravated sexual assault and one count of indecency with a child by contact, the offenses

alleged to have occurred in a single episode in July 2005.3 Following appellant’s plea of

not guilty, the matter proceeded to jury trial in January 2007. The State elected to proceed

on two aggravated sexual assault counts. One charged appellant with aggravated sexual

assault of his eight-year-old daughter by penetration of her sexual organ, the second, by

penetration of her anus.


       On July 17, 2005, following an incident during which appellant, the complainant’s

father, seriously beat complainant A.G.’s mother, eight-year-old A.G. confided to her cousin

and another female that appellant had sexually abused her the night before. A.G.’s mother

was informed of her allegations4 and A.G. was taken to the hospital for examination. A.G.


       2
       Appellant originally was indicted in 2005. That cause was dismissed in November
2006 and appellant was re-indicted.
       3
        See Tex. Penal Code Ann. § 22.021 (Vernon 2007) and Tex. Penal Code Ann. §
21.11(a)(1) (Vernon 2005). An offense under section 22.021 is a first degree felony
punishable by imprisonment for life or any term not more than 99 years or less than 5 years
and a fine of not more than $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003). An
offense under section 21.11(a)(1) is a felony of the second degree punishable by
imprisonment for a term of not more than 20 years or less than 2 years and a fine of not
more than $10,000. Tex. Penal Code Ann. § 12.33 (Vernon 2003).
       4
        The record reflects some conflicting testimony regarding events occurring just after
A.G.’s mother was informed of her allegations. One of A.G.’s cousins testified that after

                                             2
was also examined by individuals at the C.A.R.E. Center.5 Medical evidence introduced

at trial reflected that A.G. had three tears in her genitalia and her labia was “very swollen

and red.” No semen was found and no other noticeable trauma was present.


       A.G., ten years old by the time of trial, testified that appellant vaginally and anally

penetrated her. She testified that these actions “hurt really bad” and that she screamed for

her father to stop, telling him it hurt. The assault continued until A.G.’s baby sister woke

up and cried. Appellant got up and A.G. went to the restroom, finding blood.


       The next day, A.G. saw her mother and observed the severity of her injuries. A.G.

testified she went to a social gathering at her aunt’s that day where she swam, jumped on

the trampoline, and went down the slide. A.G.’s mother testified A.G. appeared to be

behaving normally that day. The jury found appellant guilty and assessed punishment at

life imprisonment. Appellant filed a motion for new trial, which was denied without a

hearing. This appeal followed.


                                            Issues


       Through five issues, appellant contends the trial court erred by: (1) denying his

motion for continuance filed on the day of trial; (2) overruling his offer of proof at trial and

wrongfully excluding evidence of a prior outcry and allegation of sexual abuse by A.G.



A.G.’s mother was told, she and A.G. went into a bathroom for 15 to 20 minutes. A.G.’s
mother testified that this did not occur.
       5
        The C.A.R.E. Center is the Child Advocacy Research and Education facility.
Sexual assault exams are performed at this facility when sexual abuse is suspected.

                                               3
against another individual; (3) including an unduly expansive and improper definition of

“female sexual organ” in the jury instructions; (4) violating his double jeopardy rights by

convicting him of two felonies allegedly committed against the same individual on the same

occasion, differing only in their manner and means; and (5) abusing its discretion in

denying appellant’s motion for new trial without conducting an evidentiary hearing.


                                          Analysis


Denial of Motion for Continuance and Motion for New Trial


       Appellant’s first and fifth issues address the court’s ruling regarding appellant’s

request for an appointed expert. In his first point of error, appellant argues that the trial

court erred in granting his request and appointing an expert but denying his accompanying

motion for a continuance. By doing so, he argues, the trial court denied him the right to an

effective expert as appointing one at the start of trial did not allow sufficient time for the

expert to prepare. In his fifth point of error, appellant argues the trial court abused its

discretion by denying him a hearing on his motion for new trial because the motion set forth

the need for an evidentiary hearing to resolve the question of the degree and severity of

the due process harm suffered by appellant by not having an effective expert witness

available at trial.


                                  Motion for Continuance


       A ruling on a motion for continuance is a matter left to the sound discretion of the

trial court. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006). We thus apply an abuse


                                              4
of discretion standard of review to the trial court’s ruling. Heiselbetz v. State, 906 S.W.2d

500 (Tex.Crim.App. 1995); Wilson v. State, 195 S.W.3d 193, 197 (Tex.App.–San Antonio,

2006, no pet.). To prevail here, appellant also must show that he was actually prejudiced

by the trial court’s ruling. Heiselbetz, 906 S.W.2d at 511.


       Appellant’s motion for appointment of a medical expert to aid in his defense stated,

as a factual basis, that discovery in the case showed “technical medical issues relating to

the issue of penetration. More particularly, the available medical records of the alleged

victim show no evidence of semen, an intact hymen, and minor trauma to the genital areas.

Evidence of anal penetration as charged is similarly ambiguous, at least to a layman,

showing what appears to be superficial external (?) (sic) trauma.” The motion named the

physician appellant desired to have appointed, Dr. Kevin Funk. It asserted the expert’s

services were “necessary to enable [appellant’s] counsel to prepare effectively for trial,

present favorable evidence and to confront and cross-examine the state’s medical expert

or experts.”


       The trial court granted appellant’s request and appointed Dr. Funk, but denied the

motion for continuance. On appeal, appellant contends the trial court erred because the

appointment of the expert without also granting a continuance resulted in inadequate

preparation time for the expert to assist appellant in his defense. Appellant argues that as




                                             5
a consequence, appellant’s due process right to expert assistance was violated6 and he

was actually prejudiced.


       Having reviewed the record, we find the trial court did not abuse its discretion by

denying the continuance. Appellant’s motion for continuance was filed with the motion for

appointment of a medical expert, on the morning of trial. The trial court was within its

discretion to find that the fair and efficient administration of justice weighed more heavily

in favor of denying the motion.         See Greene v. State, 124 S.W.3d 789, 794

(Tex.App.–Houston [1st Dist.] 2003, pet. ref’d).


       Moreover, we are unable to see that the contention presented on appeal, i.e.,

without the continuance the appointment of a medical expert was ineffective, was ever

expressly presented to the trial court. Although the motion for continuance incorporated

by reference the motion for medical expert, the continuance motion did not tell the trial

court that one was ineffective without the other. Nor was such an argument made during

the pretrial hearing at which the request for an expert was granted.


       Finally, the record shows that Dr. Funk reviewed A.G.’s medical record and

photographs taken at C.A.R.E. He prepared a brief report, which was received in the office

of appellant’s counsel sometime during the second day of trial. Counsel saw it sometime




       6
        See generally Ake v. Oklahoma, 470 U.S. 66, 68, 83 S.Ct. 1087, 84 L.Ed.2d 53
(1985); Griffith v. State, 983 S.W.2d 282, 286 (Tex.Crim.App. 1998) citing Rey v. State,
897 S.W.2d 333, 338 (Tex.Crim.App. 1995); Rodriguez v. State, 906 S.W.2d 70
(Tex.App.–San Antonio 1995, pet. dismissed) (all concerning right to expert assistance).

                                             6
after 5:00 p.m. that evening.7 Appellant has demonstrated neither an abuse of discretion

or actual prejudice resulting from the trial court’s denial of a continuance on the morning

of trial.


                                       Motion for New Trial


            Likewise, we find the trial court did not abuse its discretion in denying appellant’s

motion for new trial without allowing him an opportunity to present evidence. Appellant’s

complaint regarding the denial of his motion for new trial is predicated on essentially the

same evidence as his complaint regarding the denial of his motion for continuance: the

trial court deprived him of due process rights in appointing an expert without also granting

a continuance. In support of his motion for new trial, appellant attached the appointed




        7
            The body of Dr. Funk’s report reads, in its entirety, as follows:

                  I was asked to review records on this case in regards to possible sexual
                  assault. The records were read and the photographs at CARE were
                  observed.

                  [A.G.] had a moderately violent pulling apart of her buttocks. The
                  photograph does not prove a new hymenal tear (but the reports specify that
                  on exam, the tear was fresh). The sulcus irritation is minimal and non-
                  specific. Anything could cause this type of minimal color change. It might
                  have been more obvious when freshly after an injury, but the photographs
                  were not diagnostic. There is no proof that penetration occurred in the
                  vagina or rectum on these photographs.

                  I do not have any other plausible cause of the anal tearing since it is too
                  large to be a fissure due to constipation, or a common type injury from
                  examination or normal child play. There is a chance that her buttocks were
                  pulled far apart from an unusual activity (ie. Gymnastics), to have caused this
                  type of tearing.

                                                 7
expert’s report and an affidavit from trial counsel describing his receipt of the expert’s brief

report and his reaction to it.


       We review a trial court's denial of an evidentiary hearing on a motion for new trial

for an abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003).

A defendant's right to a hearing on a motion for new trial is not absolute. Rozell v. State,

176 S.W.3d 228, 230 (Tex.Crim.App. 2005). Thus, a trial court is not required to conduct

a hearing of the defendant's motion for new trial if the matters raised in the motion are

determinable from the record, or if the motion and supporting affidavits are not sufficient

to put the trial court on notice that reasonable grounds for a new trial may exist. Jordan

v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). When there are no issues presented

in a motion for new trial which would require proof to be developed outside the record, or

when the matters raised are subject to being determined from the record, there is no error

in overruling the motion without conducting an evidentiary hearing. Rodriguez v. State, 82

S.W.3d 1, 2 (Tex.App.–San Antonio 2001, pet. dism’d). As noted herein, all of the

allegations raised in appellant’s motion for new trial were determinable from the trial record

and accordingly, we find no abuse of discretion.

       The record shows counsel considered subpoenaing Dr. Funk after reading his brief

report. We agree with the State that, far from demonstrating appellant suffered violation

of his due process rights through counsel’s failure to do so, the record shows counsel’s

reasonable exercise of professional judgment that making the jury aware of the opinions

Dr. Funk expressed in his report would not be helpful to appellant’s defense. Like the

Court of Criminal Appeals in Wallace, 106 S.W.3d at 108, we conclude that on this record,

                                               8
the trial court reasonably could have concluded appellant’s motion and accompanying

affidavits did not show that he could be entitled to relief. In light of the entire evidentiary

record and the opinions Dr. Funk expressed in his report, we cannot find persuasive

appellant’s contention that the doctor’s more extensive involvement in the case “might have

led to major exculpatory testimony.”

        Our review of the record reveals a second reason we must conclude the trial court

did not abuse its discretion by failing to hold a hearing. Although appellant’s motion was

entitled “Motion for New Trial and for Evidentiary Hearing,” the motion does not contain a

request for a hearing, nor does the order in the record make reference to a hearing. See

Rozell, 176 S.W.3d at 231 (reference to hearing in order attached to motion insufficient to

request hearing when motion did not contain request).

         We overrule appellant’s first and fifth issues on appeal.

Exclusion of Evidence Set Forth in Offer of Proof

       In appellant’s second issue, he asserts the trial court erred in overruling his offer of

proof at trial concerning an earlier outcry of sexual abuse by A.G. regarding another

individual.8 This evidence included medical records and testimony by A.G.’s mother. In

appellant’s offer of proof, A.G.’s mother testified that in 2001 appellant’s sister told her that

A.G. claimed she had been “hurt” by an uncle that touched her inappropriately. This claim

was purportedly elicited after appellant’s sister asked A.G. leading questions. The medical

evidence introduced in appellant’s offer of proof showed that A.G. was examined on that


        8
        See Tex. R. Evid. 103(a)(2) (“[i]n case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer, or was apparent from the
context within which questions were asked”).
                                            9
occasion, and that the examination revealed no injury or trauma. Appellant argued that

A.G.’s prior experience with such an outcry, in conjunction with A.G.’s knowledge of

appellant’s assault on her mother and her observations of her mother’s injuries from that

assault, led to fabrication regarding the allegations against him, particularly in light of the

fact that A.G.’s allegations against him came to light shortly after A.G. observed injuries

sustained by her mother from an assault by appellant. Appellant contends that the

evidence proffered was proof of motive, intent, plan, or knowledge on the part of A.G. or her

mother, admissible under Texas Rule of Evidence 404(b).

         The trial court’s decision whether to admit evidence under Rule 404(b) will be upheld

on appeal absent an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990) (op. on reh’g). Thus, we will not intercede as long as the trial court's

ruling was at least within the zone of reasonable disagreement. Id. Evidence may be

admissible under Rule 404(b) if it has relevance apart from character conformity; that is, it

tends to establish some elemental fact, such as intent; that it tends to establish some

evidentiary fact, such as motive, opportunity, or preparation leading inferentially to an

elemental fact; or that it rebuts a defensive theory by showing the absence of mistake or

accident. Id. at 387-88. Relevant evidence is evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence. Tex. R. Evid. 401. Relevant

evidence is presumed admissible. Erazo v. State, 144 S.W.3d 487, 499 (Tex.Crim.App.

2004).

         Appellant contends on appeal that the excluded evidence served to support his theory

that A.G. fabricated the story of the sexual assault. He points to evidence that A.G. voiced
                                              10
her outcry shortly after she first saw the injuries her mother suffered from appellant’s beating

the night before. A.G. testified at trial that her mother looked “horrible.” During cross-

examination, A.G. agreed with counsel that she felt “very angry” about the beating. In this

context, appellant argues the jury should have been permitted to hear the evidence of “a

previous unfounded accusation by [A.G.].”

       As the State points out, the testimony of A.G.’s mother in appellant’s offer of proof

provides only indirect evidence of any statement by A.G. As noted, the mother testified that

appellant’s sister told her of A.G.’s statements. A.G. made no outcry to her mother on that

occasion. Appellant’s theory places the proffered evidence within the rule discussed in Lape

v. State, 893 S.W.2d 949, 956 (Tex.App.–Houston [14th Dist.] 1994, pet. ref’d), in which the

court affirmed the trial court’s exclusion of testimony concerning the complainant’s prior

allegations of sexual assaults because the allegations were not shown to be false. The trial

court reasonably could have viewed the testimony here in a similar light. Although it is clear

from the mother’s testimony that she believed appellant’s sister was coaching A.G. in the

2001 incident, no evidence shows that the specific statement attributed to A.G., then five

years old, was false. The trial court’s exclusion of the offer of proof testimony was not

outside the zone of reasonable disagreement.9 Appellant’s second issue is overruled.




        9
         Moreover, appellant’s argument makes clear that it is A.G.’s mother he theorizes
did the coaching here. But the testimony was to the effect that A.G. first told her story to
others before her mother had any opportunity to coach her. There is no evidence of any
conversation between A.G. and her mother prior to A.G.’s outcry to a female relative and
a friend.

                                              11
Double Jeopardy

       Appellant’s fourth point of error asserts the trial court erred by overruling

appellant’s objections on double jeopardy grounds to the application paragraphs of the

jury charge, thereby violating appellant’s constitutional rights. Appellant specifically

contends that his conviction of two counts of the same offense, committed against the

same individual on the same day, differing only in manner and means, violated his

constitutional rights.

       Double jeopardy prohibits: (1) a subsequent prosecution for the same offense after

acquittal; (2) a subsequent prosecution for the same offense after conviction; and (3)

multiple punishments for the same offense. Gonzales v. State, 8 S.W.3d 640

(Tex.Crim.App. 2000); Nickerson v. State, 69 S.W.3d 661, 670-71 (Tex.App.–Waco

2002, pet. ref’d). The double jeopardy guarantee against multiple punishments for the

same offense does no more than to prevent greater punishment than the legislature

intended. Hutchins v. State, 992 S.W.2d 629, 631 (Tex.App.–Austin 1999, pet. ref’d).

Appellant argues here he has been subjected to multiple punishments for the same

offense by virtue of multiple counts alleging differing manner and means.

       Thus, the inquiry here is whether the Legislature intended to permit multiple

punishments for proscribed acts contained within the same statutory subsection. See,

e.g., Ervin v. State, 991 S.W.2d 804, 814 (Tex.Crim.App. 1999). When multiple

punishments arise out of one trial, the Blockburger test is the starting point in analyzing

two offenses. Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App. 2008). See

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The


                                              12
Blockburger test asks whether each offense requires proof of an additional fact which the

other does not. Id. at 304. See Vick v. State, 991 S.W.2d 830, 833 n.1 (Tex.Crim.App.

1999), citing United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556

(1993) (reaffirming Blockburger test). When each offense requires proof of an element

that the other does not, multiple prosecution is not barred.10 Vick, 991 S.W.2d at 833 n.1.

       In this case, Count I required the State to prove penetration of A.G.’s anus by

appellant’s penis (genital to genital act). Count II required the State to prove penetration

of A.G.’s female sexual organ by appellant’s penis (also genital to genital act).11 The only

fact not common between the two is the State would have to prove appellant penetrated

A.G.’s anus with his penis in Count I whereas the State would have to prove appellant

penetrated A.G.’s female sexual organ with his penis in Count II. The two offenses are

therefore not the same under a strict application of the Blockburger test. However the

Blockburger test is a rule of statutory construction and is not the exclusive test for

determining if the two offenses are the same. Bigon, 252 S.W.3d at 370.

       In Ervin, 991 S.W.2d at 814, the Court of Criminal Appeals laid out a non-

exclusive list of factors to consider when examining if two offenses are the same in the

context of multiple punishment. Those factors include: (1) whether the offense provisions



        10
        Under the cognate-pleadings approach adopted by the Texas Court of Criminal
Appeals, double-jeopardy challenges should be made even to offenses that have differing
elements under Blockburger, if the same “facts required” are alleged in the indictment.
Bigon, 252 S.W.3d at 370, citing Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007).
        11
          Under the court’s analysis in Vick, proof of genital to genital penetration in Count
I is not distinct from proof of genital to genital penetration in Count II. See Vick, 991
S.W.3d at 833 n.1. (noting proof of genital to genital penetration is distinct from proof of
genital to mouth contact because each requires proof of an element the other does not).
                                              13
are contained within the same statutory section; (2) whether the offenses are phrased in

the alternative; (3) whether the offenses are named similarly; (4) whether the offenses

have common punishment ranges; (5) whether the offenses have a common focus, i.e.

“gravamen;” (6) whether that common focus tends to indicate a single instance of

conduct; (7) whether the elements that differ between the two offenses can be

considered the same under an imputed theory of liability that would result in the offenses

being considered the same under Blockburger; and (8) whether there is legislative history

containing an articulation of an intent to treat the offenses as the same or different for

double jeopardy purposes. Ervin, 991 S.W.2d at 814. These factors are not exclusive,

and the question ultimately is whether the legislature intended to allow the same conduct

to be punished under both of the offenses. Bigon, 252 S.W.3d at 371, citing Ervin, 991

S.W.2d at 814.

       We apply those factors here. The evidence presented at trial indicated that

appellant sexually assaulted his daughter by means of penetrating her (1) anally (Count I)

and (2) vaginally (Count II). Each of the offenses for which appellant was convicted are

set forth in section 22.021 of the Penal Code. See Tex. Penal Code Ann. § 22.021

(Vernon 2007). In fact, each of the offenses are set forth in the same subsection of the

statute. See Tex. Penal Code Ann. § 22.021(a)(B)(i) (Vernon 2007). This subsection

provides:

       (a) A person commits an offense:

              (1) if the person:

              (B) intentionally or knowingly:

                                                14
                     (i) causes the penetration of the anus or sexual organ of a child by

                     any means;....

       The offenses for which appellant was convicted, penetration of A.G.’s anus and

penetration of A.G.’s female sexual organ, are set forth in the same subsection in the

alternative. The offenses both fall under the name “aggravated sexual assault” and differ

only with regard to the part of the body penetrated. The proscribed acts are subject to

the identical punishment, i.e., imprisonment for life or any term not more than 99 years or

less than 5 years and a fine of not more than $10,000. Tex. Penal Code Ann. § 12.32

(Vernon 2003). The focus of the offenses is the same: penetration of the child’s genital

area. See Vick v. State, 991 S.W.2d at 833. Lastly, section 22.021 is a conduct-oriented

offense in which the Legislature criminalized very specific conduct of several different

types. Id. Each of the criminalized acts is set forth in detail in five separate subsections

of the statute. Each section entails different and separate acts to commit the various,

prohibited conduct. Id. The statute’s specificity in separating the acts reflects the

legislature’s intent to separately and distinctly criminalize any act which constitutes the

proscribed conduct. Id. Because the offenses for which appellant was convicted are

under the same subsection, the Legislature did not intend to provide multiple

punishments for two acts falling under a single subsection. We find each of the relevant

factors weighs in favor of the two offenses being considered the “same” in these

circumstances.12


        12
         See Duran v. State, No. 07-07-0110-CR, 2008 WL 794869 (Tex.App.–Amarillo
March 26, 2008, pet. ref’d). There, the amended indictment charged the defendant with
penetration of the victim’s sexual organ (Count II) and penetration of the victim’s anus
(Count III). In determining the defendant was not denied grand jury review of the charges
                                           15
      We therefore agree with appellant that his convictions for both offenses

constituted a violation of the double jeopardy guarantee. Generally, when a defendant is

convicted of two offenses in violation of the double jeopardy guarantee, the offense

carrying the more serious punishment will be retained and the other offense will be set

aside. See Bigon, 252 S.W.3d at 372-73; Landers v. State, 957 S.W.2d 558, 560

(Tex.Crim.App. 1997); Hutchins, 992 S.W.2d at 632. Here, each offense carries the

same punishment. We must, then, look to other criteria for determining which offense is

the more serious. Bigon, 252 S.W.3d at 373. In a similar situation, the Court of Criminal

Appeals looked to the degree of felony for each offense. Id. Again, we note both

offenses for which appellant was convicted are first degree felonies subject to the same

range of punishment and parole eligibility rules.13 See Tex. Penal Code Ann. § 22.021(e)

(Vernon 2007); Tex. Penal Code Ann. § 12.32 (Vernon 2003). However, the trial court

assessed court costs in the amount of $428 in Count I but did not assess any additional

fees or costs in Count II. See Ex Parte Cavazos, 203 S.W.3d at 338-39 (same term of

years assessed for each conviction, no fines assessed for either conviction, but

restitution of $122 was ordered in the judgment for burglary with intent to commit theft

and thus was the “most serious” offense). We find the offense under Count I is the more

serious.



against him, this Court stated “the amended indictment did not charge an additional or
different offense; it merely separated the different means of committing the same offense,
sexual assault, into two different counts.” See Tex. Code Crim. Proc. Ann. art. 21.24(a).
       13
        But cf. Ex Parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App. 2006) in which
the court overruled cases holding other factors such as degree of felony, range of
punishment, and rules governing parole eligibility and awarding of good-conduct time
should be used in making the determination of which offense is the most serious.
                                         16
       There is a second reason to retain appellant’s conviction under Count 1. All other

factors being equal, the conviction that should be affirmed is the offense named in the

first verdict form. See Ex parte Cavazos, 203 S.W.3d at 339 n.8. Here, Count I appears

first. For these reasons, we will retain appellant’s conviction and punishment for the

offense alleged in Count I (aggravated sexual assault by penetration of A.G.’s anus by

appellant’s penis) and vacate appellant’s conviction and punishment for the offense

alleged in Count II (aggravated sexual assault by penetration of A.G.’s female sexual

organ by appellant’s penis). Bigon, 252 S.W.3d at 372-73; Nickerson, 69 S.W.3d at 671.

       Our disposition of appellant’s first, second, fourth and fifth issues makes

unnecessary our consideration of his third issue, which pertains to the jury charge on

Count II. Accordingly, we vacate the trial court’s judgment as to Count II and affirm the

trial court’s judgment as to Count I.




                                        James T. Campbell
                                             Justice

Do not publish.




                                               17
