
Opinion issued April 24, 2003






 











In The
Court of Appeals
For The
First District of Texas
 

 
 
NO. 01-02-00374-CR
____________
 
ANTHONY LEGGETT, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
 
On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 20,979
 

 
 
O P I N I O N
          A trial court found appellant, Anthony Leggett, guilty of attempted aggravated
sexual assault of a child and sentenced him to confinement for three years.  In two
points of error, appellant contends that the evidence is legally insufficient to support
his conviction and that the trial court erred in ruling that, pursuant to Tex. Code
Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2003), community supervision is
not available for the offense of attempted aggravated sexual assault.  We affirm.
Facts and Procedural Background
          In two indictments, it was alleged that appellant committed two separate
offenses of aggravated sexual assault against two children.  The cases were
consolidated by agreement, and appellant waived his right to trial by jury.  After
pleading not guilty in both cases, the trial court found appellant not guilty in one case
and guilty of the lesser included offense of attempted aggravated assault of a child in
this case.
          The complainant’s step-grandmother, Helen Teetz, testified that the
complainant and his mother had lived with her since the complainant was 18 or 19
months old.  She stated that, on November 19, 2000, the complainant came home
from visiting appellant, his father, and he was crying and wanted a bath.  After the
complainant had taken a bath, he attempted to sit in Teetz’s lap and told her,
“Grandma, that hurts.  I can’t sit in your lap.”  Teetz asked the complainant why he
hurt, and the complainant responded, “My daddy hurt me,” and he pointed to his
bottom.  Teetz asked the complainant if appellant had spanked him, and he said, “No,
daddy hurt me bad.  He pocked [sic] and scratched me.”  Teetz testified that she
looked at the complainant’s bottom and “I could see that his rectum was really
irritated and swollen.”  Teetz notified the police department and took the complainant
to the emergency room of a hospital.  The complainant was two years and 11 months
old at the time of the outcry.
          Dr. James Smith testified that, on November 19, 2000, he examined the
complainant at the emergency room of Huntsville Memorial Hospital. Dr. Smith
stated that the complainant told a nurse that, “[M]y dad hurt me.  He put his finger in
there and it hurt.”  Dr. Smith spoke with the complainant alone, and he “pointed to
his rectum as best I can recall and said his dad hurt him.”  Dr. Smith physically
examined the complainant, and he found no tears, abrasions, or contusions of the
rectum.  Dr. Smith further testified that even though he did not find any tears, a
person “can obviously touch somebody in a unwanted way and not leave any mark
but the child to me was aware that that was the place that he shouldn’t be touched and
he felt like he was hurt.”  Dr. Smith also stated his opinion that because there were
no tears, there was no penetration.
          The complainant testified, in pertinent part, during direct examination as
follows:
[State]:The question was: Is it [appellant] who hurt your butt?
[Complainant]:Yes.  That’s what’s on the video.
[State]:Is that what is true?
[Complainant]:Yes.
[State]:Can you tell the judge what he hurt your butt with?
[Complainant]:Nothing.
[State]:What did he do that hurt?  What are you pointing at? 
You’re pointing at [appellant], your dad, and now you’re
pointing at your butt.  What did he hurt you with?
 
[Complainant]:Finger.
[State]:Show me or tell me because this lady has to put it down.
[Complainant]:Finger.
          When the State asked the complainant “when your daddy hurt your butt with
his finger, if this is his finger and this is you, was it outside or inside,” the
complainant answered, “Inside.”
          Appellant testified that on the day of the assault, he and the complainant had
“played video games and we drew a little bit.” Appellant stated that he did not remove
the complainant’s clothes to bathe him or clean him, the complainant was not in pain
and made no complaints, and he did not touch the complainant improperly on his
bottom.  Appellant testified that he believed that the complainant was lying during
his testimony.  However, appellant further testified that the complainant “tells his
stories,” but for “the most part, he’s usually truthful.”
Legal Sufficiency
          In his first point of error, although appellant contends that “the evidence is
insufficient” to support his conviction, the arguments in his brief reflect that appellant
is challenging only the legal sufficiency of the evidence and not the factual
sufficiency of the evidence.
          We review the legal sufficiency of the evidence by viewing the evidence in the
light most favorable to the verdict to determine if any rational fact finder could have
found the essential elements of the crime beyond a reasonable doubt.  King v. State,
29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  Although our analysis considers all
evidence presented at trial, we may not re-weigh the evidence and substitute our
judgment for that of the fact finder.  Id.
          To obtain a conviction for aggravated sexual assault of a child, the State had
to prove that appellant intentionally or knowingly caused the penetration of the
complainant’s anus, without his consent.  Tex. Pen. Code Ann. § 22.021 (a)(1)(B)(i)
(Vernon 2003).   
          Criminal attempt occurs when a person, with specific intent to commit an
offense, does an act amounting to more than mere preparation that tends but fails to
effect the commission of the offense intended.  Id. § 15.01(a) (Vernon 2003). 
Moreover, if a person attempts an offense that may be aggravated, his conduct
constitutes an attempt to commit the aggravated offense if an element that aggravates
the offense accompanies the attempt.  Id. at § 15.01(b) (Vernon 2003).
          Appellant contends that the trial court had to find some evidence that, if he is
guilty, he is guilty of “only” the lesser offense of attempted aggravated sexual assault. 
Appellant argues that there was no evidence that he had the specific intent to
penetrate the complaint’s anus or did an act that amounted to more than mere
preparation.
           In a bench trial, the trial court is authorized to find a defendant guilty of any
lesser offense for which the State provides the required proof.  Shute v. State, 877
S.W.2d 314, 315 (Tex. Crim. App. 1994).  Attempted aggravated sexual assault of a
child is a lesser included offense of aggravated sexual assault of a child.    
          Here, the record reflects that the complainant told Teetz that appellant had hurt
him by poking and scratching his bottom.  Moreover, the complainant told Dr. Smith
that appellant “had touched him, pointing to his rectal area, and hurt him with his
finger.”  During the trial, the complainant pointed at appellant and then pointed to his
rectum, and testified that appellant hurt him with his “finger.”  Moreover, the
complainant testified that when appellant hurt the complainant’s bottom, appellant’s
finger was “inside him.”  We note that the testimony of a victim standing alone, even
when the victim is a child, is sufficient to support a conviction for sexual assault. 
Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d). 
          We hold that the evidence presented in this case was legally sufficient to entitle
a rational fact finder to find that appellant committed attempted aggravated sexual
assault of a child.
          We overrule appellant’s first point of error.
Community Supervision
          In his second point of error, appellant contends that the trial court erred in
ruling that it was precluded from placing appellant on community supervision
because appellant was convicted of attempted aggravated sexual assault.  A judge, in
the best interest of justice, the public, and a defendant, after conviction may suspend
the imposition of sentence and place a defendant on community supervision.  Tex.
Code Crim. Proc. Ann. art. 42.12, § 3(a).  However, the provisions of section 3 do
not apply to a defendant adjudged guilty of an offense “under” section 22.021of the
Penal Code (aggravated sexual assault).  Id. at §3g(a)(1)(E).
          Appellant contends that because “the Legislature did not include” attempted
aggravated sexual assault in section 3g, this court must find that the court erred when
it overruled his motion to find that attempted aggravated sexual assault is “not a 3g
offense.”
          This Court has recently noted that “[i]t is axiomatic that, when a defendant is
found guilty of an attempted offense, he is found guilty not only under section 15.01
[criminal attempt], but also under the underlying penal code provision as well.” 
Parfait v. State, 85 S.W.3d 829, 831 (Tex. App.—Houston [1st Dist.] 2002, pet.
granted) (emphasis added).  In Parfait, the defendant argued that the trial court erred
in ordering consecutive sentences because he was sentenced to attempted aggravated
sexual assault, as opposed to a completed  offense, under section 3.03(b)(2)(A) of the
Penal Code.  Id. at 830.  See Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon 2003)
(providing that sentences may run consecutively if defendant is convicted of
aggravated sexual assault of victim younger than 17 years of age).  We concluded that
“if a defendant is found guilty of attempted aggravated sexual assault, his conviction
is under both section 15.01 and section 22.021” of the Penal Code.  Parfait, 85
S.W.3d at 831 (emphasis added).  Thus, this Court held in Parfait that the trial court
did not err in ordering the defendant’s sentences to run consecutively.  Id. at 831-32.
          Here, the trial court, as the fact finder, determined appellant’s guilt under both
section 15.01 and section 22.021 of the Penal Code.  Section 22.021 is one of the
enumerated offenses under article 42.12, section 3g of the Code of Criminal
Procedure.  Thus, we hold that the trial court did not err in ruling that it was
precluded from placing appellant on community supervision.
          We overrule appellant’s second point of error.  
Conclusion
          We affirm the judgment of the trial court.
 
 
                                                                        Terry Jennings
                                                                        Justice
 
Panel consists of Justices Hedges, Jennings, and Alcala.
Publish.  Tex. R. App. P. 47.2(b).
 
