                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 ROY DANIEL MUNN,                                §
                                                                 No. 08-07-00294-CR
                   Appellant,                    §
                                                                   Appeal from the
 v.                                              §
                                                             401st Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                           of Collin County, Texas
                                                 §
                   Appellee.                                     (TC#401-80100-06 )
                                                 §


                                          OPINION

       This is an appeal from a conviction on four counts of aggravated sexual assault of a child

and one count of indecency with a child by contact. Appellant challenges the legal sufficiency of

the evidence and whether he received effective assistance of counsel. We affirm.

       K.P. was sleeping when she heard her mother and stepfather, Daniel Munn, yelling about

a towel. K.P. went to the top of the staircase, and saw her mom sitting down trying to put her

shoes on. K.P. saw Appellant standing over her mother and thought he was going to hit her

mother. Appellant turned around, saw K.P., and threw a boot at K.P., which hit her head and the

hand she tried to block it with. Then, the Appellant ran up the stairs and told K.P. to get back to

bed.

       Andrea Munn, K.P.’s mother, took her children to school the next day, and then called

her neighbor and friend, Sharee Hicks, and asked to visit and talk about the previous night’s

incident. They talked and at some point, Ms. Munn called the police. Police officers came to

Ms. Hicks’ home, and after they told Ms. Munn that they would like to speak to K.P., K.P.’s
mother picked K.P. up from school.

       Detective Chris Burns was one of the officers who responded to the call by Ms. Munn,

and handled the investigation of the case. Det. Burns obtained a written statement from

Ms. Munn at the police station and interviewed K.P. Det. Burns spoke to K.P. about what she

saw happen between her mom and step-dad and what happened to her. Det. Burns asked K.P. if

there was anything else she wished to talk about. Det. Burns said K.P. hung her head, started

wringing her hands, and her mouth started quivering. Det. Burns asked her if she would feel

more comfortable speaking to somebody else such as a female officer. There were no female

officers, so he asked Ms. Hicks if she would sit with K.P., and see if she opened up to her. Det.

Burns told Ms. Hicks to not ask any questions, but just make her feel comfortable to see if we

could figure out what was going on.

       Ms. Hicks testified that K.P. told her that Appellant had touched her. She asked K.P. if

she wanted to show her where, but K.P. said no. K.P. had a stuffed animal, and Ms. Hicks said

she told K.P. that she could demonstrate where the touching had been using the toy. K.P. pointed

between the legs of the toy. K.P. then told her about an incident that happened between her and

Appellant. K.P. said that Appellant had called her into his bedroom, and made her lock the door.

He told her to take off her clothes and lay down on the end of the bed. He covered her head with

a towel, and she said he bent over her and she felt something between her legs. K.P. did not tell

her anything else, only that he was putting something between her legs. K.P. told her that it

happened more than once.

       K.P. testified that sometimes when her mother was gone, he would take her into his

bedroom and lock the door. He would tell her to take off her clothes, put her on the bed, and


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then take his clothes off. She would be on her hands and knees, and he would be standing up

behind her. K.P. said he would touch her in places he is not supposed to. He would touch her

with his private parts. His privates would touch her front and back private parts. K.P. said that

his private would touch her front private from the back through her legs. K.P. said his hand also

touch both her front and back privates. She said that when he touched her, it was on the skin of

her privates not on her clothes. K.P. did not see his private, but thought it was because he had his

clothes off, and it did not feel like anything else. K.P. said that he would put a towel over her

face, so she could not see him. K.P. stated that there was not always a towel over her face. The

first touching started around when K.P. was six and stopped when she was nine. Appellant never

asked her to touch his body. One time, he went to the bathroom, and told her not move. When

he came out, he put some type of liquid on her front and back privates. K.P. stated that it did not

hurt, when asked how it felt.

       Carol Goldberg, a registered nurse and certified sexual assault nurse testified at trial.

K.P. told her that her stepfather would put his fingers on her behind and on the front part of her

private. He always went to the bathroom to get stuff, but she did not know what he was getting.

He told her not to tell anyone. Ms. Goldberg stated in here experience that about eighty-five

percent of the non-acute exams show no trauma. An acute exam is one which occurs within

seventy-two to ninety-six hours of the assault. Ms. Goldberg did not find any trauma to K.P.’s

anus or sexual organ. Ms. Goldberg stated that rubbing could be penetration if it went passed a

certain point, and that there could be penetration from rubbing the female sexual organ with

liquid. On cross-examination, she agreed that she did not receive any information from K.P.

about penetration, and only talked about his finger not his private.


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       Daniel Munn testified on behalf of himself. He stated that he was arguing with his wife

about a towel, but when he threw the boot, he did not mean to hit K.P. rather just scare her so she

would go back to her room. He stated that his relationship with Ms. Munn had been

deteriorating, and he had told her that night that he thought they should separate. Appellant was

shocked and devastated at the allegation of sexual abuse. He strongly denied the allegations, and

did so again in court. Appellant said he could never had done something like that to K.P. On

cross-examination, Appellant stated that he kept a sexual lubricant in his bathroom.

       In Count I, Appellant was convicted of aggravated sexual assault of a child by

intentionally and knowingly causing contact with the female sexual organ of K.P., a child

younger than fourteen years of age and not the spouse of the defendant, by means of defendant’s

male sexual organ, and sentenced to fifteen years’ in prison. In Count II, Appellant was

convicted of aggravated sexual assault of a child by intentionally and knowingly causing contact

with the anus of K.P., a child younger than fourteen years of age and not the spouse of the

defendant, by means of defendant’s male sexual organ, and sentenced to five years’ in prison to

run consecutively. In Count III, Appellant was convicted of aggravated sexual assault of a child

by intentionally and knowingly causing the penetration of the female sexual organ of K.P., a

child younger than fourteen years of age and not the spouse of the defendant, by means of an

object unknown to the grand jury, and sentenced to five years’ in prison to run consecutively with

Counts I and II. In Count V, Appellant was convicted of aggravated sexual assault of a child by

intentionally and knowingly causing the penetration of the female sexual organ of K.P., a child

younger than fourteen years of age and not the spouse of the defendant, by means of defendant’s

finger, and sentenced to five years’ in prison to run concurrently. In Count VII, Appellant was


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convicted of indecency with a child by intentionally and knowingly, with the intent to arouse and

gratify the sexual desire of said defendant, engaged in sexual contact by touching the anus of

K.P., a child younger than seventeen years of age and not the spouse of the defendant, by means

of an object unknown to the grand jurors, and sentenced to ten years’ in prison to run

concurrently.

       In Issue One, Appellant argues he received ineffective assistance of counsel by failure of

counsel to cross-examine K.P. and failure to conduct a thorough examination of Appellant while

on the witness stand.

       Ineffective assistance of counsel claims are reviewed under a two-pronged test. First, an

appellant must establish counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Mallet v. State, 65 S.W.3d 59, 62-3

(Tex.Crim.App. 2001). Secondly, the appellant must establish that counsel’s deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson v.

State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Prejudice is established by a showing that

there is a reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Mallet, 65

S.W.3d at 63. Claims of ineffective assistance must be proved by a preponderance of the

evidence. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002).

       When reviewing an ineffective assistance claim, we must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance, and the

appellant must overcome the presumption that the challenged conduct can be considered sound


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trial strategy. Jackson, 877 S.W.2d at 771. Allegations of ineffectiveness must be firmly

founded in the record. Mallet, 65 S.W.3d at 63. The record on direct appeal will generally be

insufficient to show that counsel’s representation was so deficient as to meet the first prong of

the Strickland analysis because the reasonableness of counsel’s choices often involve facts that

do not appear in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.

2003). An appellant challenging trial counsel’s performance faces a difficult burden and a

substantial risk of failure. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

       Appellant argues it was ineffective assistance of counsel to not cross-examine K.P. and

counsel did not thoroughly examine Appellant on the witness stand. The record does not show

that counsel had an unprofessional reason for not cross-examining K.P. or for the extent of direct

examination of Appellant. There was no motion for new trial filed, and thus no explanation by

counsel regarding his decisions at trial. To overcome the first prong of Strickland, the appellant

must produce a record affirmatively demonstrating the objectively unprofessional conduct. See

Bone, 77 S.W.3d at 835. Without such a record, we are bound by the presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance, and the challenged

actions can be considered reasonable trial strategy. Jackson, 877 S.W.2d at 771. Without proof

of unprofessional conduct, we cannot determine that Appellant’s defense was prejudice by the

representation. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Jackson, 877 S.W.2d at 771.

Issue One is overruled.

       In Issue Two, Appellant argues that the evidence is legally insufficient to prove

penetration as alleged in Counts III, V, and VI of the indictment. In reviewing the legal

sufficiency of the evidence, we consider all of the evidence in the light most favorable to the


                                                -6-
verdict and determine whether a rational juror could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,

2788-89, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We

must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inference from basic facts to ultimate

facts.” Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2781.

        A person commits the offense of aggravated sexual assault of a child if he intentionally or

knowingly causes the penetration of the anus or sexual organ of a child by any means.

TEX .PENAL CODE ANN . § 22.021 (a)(1)(B)(i)(Vernon Supp. 2009). Appellant argues that K.P.’s

testimony supports a finding of contact, but that she did not testify to penetration. Count III and

V both required penetration of the female sexual organ while Count VI required penetration of

the anus. Appellant was not convicted under Count VI, but rather was convicted under Count

VII for contact with the anus of K.P. We must therefore review whether the evidence was legally

sufficient to support a finding of penetration of the female sexual organ under Counts III and V.

        The slightest penetration of the female sexual organ is sufficient to prove penetration

even though the vagina is not entered. See Vernon v. State, 841 S.W.2d 407, 409

(Tex.Crim.App. 1992). Penetration occurs where the contact is more intrusive than contact with

the outer labia. See id. at 409. Proof of penetration may be circumstantial. Id. Additionally, a

sexual assault victim need not testify as to penetration. Villalon v. State, 791 S.W.2d 130, 133

(Tex.Crim.App. 1990). The jury rationally could have inferred that Appellant penetrated K.P.’s

sexual organ based on the evidence presented. Villalon, 791 S.W.2d at 133-34. K.P. testified

that Appellant would have her naked on the bed on all fours. Appellant would be standing


                                                  -7-
behind her and touch her front and back private parts with his private. She stated Appellant

would touch her front private from the back through her legs with his private. She stated that he

would go to the bathroom to get something but did not know what it was, and the sane nurse

repeated this testimony. Appellant stated on cross-examination that he had sexual lubricant in

his bathroom. We find the evidence to be legally sufficient. Issue Two is overruled.

        Additionally, the trial court certified that Appellant had a right to appeal but the

certification does not contain the defendant’s signature indicating that he was informed of his

rights to appeal and file a pro se petition for discretionary review. The certification is defective

but it has not been corrected by the trial court or Appellant’s attorney. In order to remedy this

defect, we ORDER Appellant’s attorney, pursuant to TEX .R.APP .P. 48.4, to send Appellant a

copy of our opinion and judgment, notify Appellant of his right to file a pro se petition for

discretionary review, and inform Appellant of the pertinent deadlines. See TEX .R.APP .P. 48.4,

68. Appellant’s attorney is further ORDERED to comply with all of the requirements of Rule

48.4.

        Having overruled Appellant’s issues, we affirm the judgment of the trial court.


March 17, 2010
                                               DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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