

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
 

 
O P I N I O N
 
            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).
            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).  
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.
 

