Opinion filed October 6, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-09-00327-CR
                                        __________

                          JON PAUL PROCTOR, Appellant

                                              V.

                                STATE OF TEXAS, Appellee


                          On Appeal from the 118th District Court

                                    Howard County, Texas

                                  Trial Court Cause No. 12653


                                         OPINION

       The State charged Jon Paul Proctor by indictment with two counts of aggravated sexual
assault of a child, a first-degree felony. TEX. PENAL CODE ANN. § 22.021 (Vernon 2011). In
Count One, the State alleged that Proctor intentionally or knowingly caused the penetration of
the sexual organ of K.T. with his tongue.      In Count Two, the State alleged that Proctor
intentionally or knowingly caused K.T.‘s mouth to contact his sexual organ. The jury acquitted
Proctor of the offense charged in Count One of the indictment and convicted him of the first-
degree felony offense charged in Count Two. The jury assessed his punishment at forty-five
years in the Institutional Division of the Texas Department of Criminal Justice. Proctor asserts
in two issues that (1) the trial court erred in failing to grant his motion to suppress evidence and
(2) the evidence is factually insufficient to support the conviction. We affirm.
       We will first address Proctor‘s challenge to the sufficiency of the evidence to support his
conviction. We note at the outset of our analysis that the Texas Court of Criminal Appeals has
now held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is ―no
meaningful distinction between the Jackson v. Virginia1 legal-sufficiency standard and the
Clewis2 factual-sufficiency standard‖; that the Jackson v. Virginia standard is the ―only standard
that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt‖;
and that ―[a]ll other cases to the contrary, including Clewis, are overruled.‖ Brooks, 323 S.W.3d
at 895, 902, 912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the
evidence is no longer viable. We also note that appellant did not have the benefit of the opinion
in Brooks when this case was briefed. We will review appellant‘s sufficiency challenge under
the legal-sufficiency standard set forth in Jackson v. Virginia. Under this standard, we must
review all of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
       K.T., the child complainant, was thirteen years old when the offenses charged in the
indictment were alleged to have occurred.                  Proctor was K.T.‘s stepfather.   On or about
September 27, 2008, Proctor and K.T. were left alone in the residence in which Proctor, K.T.,
K.T.‘s mother, K.T.‘s brother, and K.T.‘s sister lived. K.T. testified that, after everyone other
than K.T. and Proctor left the house that day, Proctor told K.T. that she ―needed to get
ungrounded.‖ According to K.T., she was grounded by her parents due to problems with her
grades and for lying for her sister. K.T. testified that Proctor told her to get undressed and that
he turned on a pornographic movie. She testified that Proctor tried to insert a dildo into her
vagina but that he was unsuccessful because K.T. clamped her legs together. Proctor also told
her to give him a ―BJ,‖ and in response, she ―sucked on his penis.‖ Prior to reaching climax,
Proctor told K.T. to stop. K.T. testified that, after she stopped, Proctor ejaculated on the carpet
in between the television and the bed. K.T. was thirteen years old at the time.

       1
        Jackson v. Virginia, 443 U.S. 307 (1979).
       2
        Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
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       During trial, over Proctor‘s objection, the court admitted five pictures obtained during a
search of Proctor‘s home pursuant to a search warrant. The pictures showed a dresser in
Proctor‘s bedroom and the contents found in it. These pictures included close-up photos of one
drawer that contained pornographic movies and another drawer that contained various sexual
toys, including dildos and vibrators.
       Wayne Jones, ID technician for the Big Spring Police Department, testified that, through
the use of a black light, he identified a stain, which at that time was presumptively believed to be
bodily fluid, located in front of both the bed and the television in Proctor‘s bedroom. The State
submitted a picture of the stain into evidence. Using a distilled water swab, Jones swabbed the
stain and placed the sample in a container. Jones testified that the sample was sent to the Texas
Department of Public Safety lab in Lubbock. Daniel J. Lindley, a forensic scientist in the DNA
section of the Texas DPS, testified that the swab contained semen. He further testified that the
DNA in the swab was consistent with Proctor‘s DNA profile. The probability of randomly
selecting an unrelated person as the source of the profile was 1 in 25.26 quintillion for
Caucasians.
       Proctor testified in his own defense that the events described by K.T. never occurred and
that the semen located on the floor was a result of his conjugal relations with his wife.
       Proctor relies on conflicting testimony between K.T. and Proctor and on inconsistencies
in K.T.‘s testimony in arguing that the evidence was insufficient to support his conviction. The
jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to
be given to their testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04
(Vernon 1979). The jury was free to believe or disbelieve all or any part of any witness‘s
testimony and was entitled to resolve any conflicts in K.T.‘s testimony against Proctor and to
conclude that any inconsistencies in her testimony were inconsequential. Cain v. State, 958
S.W.2d 404, 408-09 (Tex. Crim. App. 1997); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.
App. 1986); Empty v. State, 972 S.W.2d 194, 196-97 (Tex. App.—Dallas 1998, no pet.).
       In order to prove that Proctor committed the offense of aggravated sexual assault as
charged in Count Two of the indictment, the State had to show beyond a reasonable doubt that
Proctor intentionally or knowingly caused the penetration of K.T.‘s mouth by his sexual organ
and that K.T. was younger than fourteen years of age. See Section 22.021(a)(1)(B)(ii), (a)(2)(B).
A complainant‘s testimony alone is sufficient to support the jury‘s finding that sexual contact or

                                                  3
penetration did in fact occur. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978);
Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.—Houston [14th Dist.] 2004, no pet.). And, the
testimony of a child victim alone is sufficient to support convictions for sexual assault of a child
and indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Tear v.
State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref‘d). In addition, a jury could
reasonably believe that finding Proctor‘s semen on the floor where K.T. said it would be
corroborated her testimony. Viewing all the evidence in the light most favorable to the verdict,
we conclude that a rational trier of fact could have found all the elements of the offense beyond a
reasonable doubt. Therefore, the evidence is sufficient to support Proctor‘s conviction for the
offense of aggravated sexual assault of a child. Proctor‘s second issue on appeal is overruled.
       In his first issue, Proctor argues that the trial court erred when it denied his motion to
suppress evidence received pursuant to the warrant issued to search Proctor‘s residence. In
support of this argument, Proctor makes several contentions, which can be summarized as
follows: (1) the warrant was invalid because the magistrate who signed the warrant lacked the
authority to do so; (2) the warrant failed to incorporate the affidavit supporting the warrant; and
(3) the warrant‘s descriptions of property to be seized were inadequate, did not meet the Texas
Code of Criminal Procedure‘s specificity requirement, and did not demonstrate evidence of a
crime having been committed.
       In the days following the sexual assault, Detective Phil Whitten, a Big Spring police
officer, took K.T. and her sister, T.T., to the Children‘s Advocacy Center in Midland after a
complaint was made by T.T. about Proctor. The center specializes in interviewing children in a
controlled environment. At the center, both T.T. and K.T. were interviewed. From outside the
interview rooms, Whitten monitored the interviews. Based on K.T.‘s complaint, the police
obtained a search warrant to search for evidence of the sexual assault, including semen, sexual
toys, and pornographic material.
       In reviewing a trial court‘s ruling on a motion to suppress, appellate courts must give
great deference to the trial court‘s findings of historical facts as long as the record supports the
findings. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a hearing on a
motion to suppress, the trial court is the sole factfinder and the judge of the witnesses‘
credibility, and we may not disturb any finding that is supported by the evidence unless an abuse
of discretion is shown. Id.; Davis v. State, 829 S.W.2d 218 (Tex. Crim. App. 1992). Because the

                                                 4
trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the
suppression hearing in the light most favorable to the trial court‘s ruling. Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the trial court‘s rulings on
mixed questions of law and fact when those rulings turn on an evaluation of credibility and
demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of
credibility and demeanor, we review the trial court‘s actions de novo. Id.; Davila v. State, 4
S.W.3d 844 (Tex. App.—Eastland 1999, no pet.).
        Proctor contends that the magistrate who issued and signed the warrant was not a licensed
attorney and that, because he was not an attorney, he was not authorized to issue the warrant.
Article 18.01(c) of the Texas Code of Criminal Procedure sets forth the applicable code
provision upon which Proctor bases his argument:
        Except as provided by Subsections (d), (i), and (j), only a judge of a municipal
        court of record or a county court who is an attorney licensed by the State of
        Texas, a statutory county court judge, a district court judge, a judge of the Court
        of Criminal Appeals, including the presiding judge, or a justice of the Supreme
        Court of Texas, including the chief justice, may issue warrants under Article
        18.02(10).

TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (Vernon Supp. 2010).
        It is uncontested that the magistrate issued the warrant under Article 18.02(10), which
provides in relevant part: ―A search warrant may be issued to search for and seize . . . property
or items, except the personal writings by the accused, constituting evidence of an offense or
constituting evidence tending to show that a particular person committed an offense.‖ TEX.
CODE CRIM. PROC. ANN. art. 18.02(10) (Vernon 2005). These search warrants are commonly
referred to as evidentiary warrants.     Graves v. State, 307 S.W.3d 483, 495 (Tex. App.—
Texarkana 2010, pet. ref‘d) (citing Mullican v. State, 157 S.W.3d 870, 873 (Tex. App.—Fort
Worth 2005, pet. ref‘d)).
        Proctor is correct that generally one of the magistrates listed in Article 18.01(c) must
issue a warrant under Article 18.02(10). Id. However, Article 18.01(i) provides an exception to
this rule:
               In a county that does not have a judge of a municipal court of record who
        is an attorney licensed by the state, a county court judge who is an attorney
        licensed by the state, or a statutory county court judge, any magistrate may issue a
        search warrant under Subdivision (10) or Subdivision (12) of Article 18.02 of this
        code.

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        In his brief, Proctor acknowledges the existence of the exception; however, he asserts,
―There is nothing within the record which shows the applicability of the exception.‖ It is true
that there is nothing in the record that specifically states that the exception applies. But there is
also nothing in the record that indicates that it does not apply. In his motion to suppress, Proctor
stated, in part, the following:
                That on or about October 3, 2008, and November 5, 2008, the Honorable
        Mark Barr, a non-lawyer County Court Judge of Howard County, signed two
        search warrants, both of which were alleged evidentiary search warrants. Both
        warrants are invalid as evidentiary search warrants. Neither warrant ―identify, as
        near as may be, that which is to be seized and namely described, as near as may
        be, the person, place or thing to be searched‖ as required by Article 18.04 of the
        Texas Code of Criminal Procedure.

This is the only mention in the record that the issuing magistrate was not a licensed attorney.
Proctor did not offer any evidence in support of the motion, and no one discussed the issue at the
hearing on the motion to suppress.
        The burden of proof in a hearing on a defendant‘s motion to suppress is initially upon the
defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). When no objection is
made, a presumption exists that the judge acted properly in the regular discharge of his duties.
Zarychta v. State, 44 S.W.3d 155, 165 (Tex. App.—Houston [14th Dist.] 2001, pet. ref‘d).
Because Proctor offered no evidence during the hearing to show that the county court judge who
issued the warrant was without authority to do so, he did not overcome the presumption that the
judge acted within his authority to issue the warrant. Id. Proctor‘s contention regarding the
county court judge‘s authority to issue the warrant is overruled.
        Proctor argues that the warrant did not properly incorporate the affidavit by reference
and, thus, constituted nothing more than a general warrant. On the issue of incorporation, the
Court of Criminal Appeals has stated the following:
        [W]hen the affidavit is incorporated by reference, it becomes a part of, and can be
        used to aid the description in, the search warrant. The reason for the rule
        underscores our recognition that a factual affidavit, upon which the actual
        instrument of search or seizure must succeed or fail, is usually more specific and
        meticulous in reciting the information known to an affiant than is the warrant
        which follows. By nature the affidavit is intended to inform and persuade; the
        warrant simply executes the determination of probable cause made by the
        magistrate. When the question on appeal relates to descriptive facts supporting


                                                 6
       the probable cause determination, a reviewing court may logically look behind the
       warrant to the supporting affidavit.

Green v. State, 799 S.W.2d 756, 760 (Tex. Crim. App. 1990).
       Here, the warrant contains, in pertinent part, the following language: ―[Y]ou are
commanded to enter the suspected place and premises described in said Affidavit and to search
for the property described in said Affidavit and to seize the same and bring it before me.‖ In
addition, the warrant specifically provides that the ―affidavit is by this reference incorporated
herein for all purposes.‖ This language unequivocally incorporates Detective Whitten‘s affidavit
into the warrant.
       Proctor also argues that, even if the affidavit was incorporated into the warrant, it is of no
effect because there is no showing in the record that the affidavit accompanied any officer in
executing the warrant. However, there is no evidence that the affidavit was not present at the
search site, and there is no evidence presented of prejudice or harm. As discussed below, during
the execution of the search warrant, no evidence was seized that exceeded the scope of the
warrant. Proctor‘s arguments are overruled.
       Proctor contends that the description of the property to be seized did not demonstrate
evidence of a crime having been committed and did not comport with the requirements of
Article 18.01(c)(2). Article 18.01(c)(2) provides, ―A search warrant may not be issued under
Article 18.02(10) unless the sworn affidavit . . . sets forth sufficient facts to establish probable
cause . . . that the specifically described property or items that are to be searched for or seized
constitute evidence . . . that a particular person committed that offense.‖ Article 18.01(c)(2).
Proctor bases this argument on a portion of Detective Whitten‘s affidavit, which provides the
following:
       The property and items which are located therein and constitute evidence of an
       offense, and which tends to show that Jon Proctor committed the offense of
       Aggravated Sexual Assault Of A Child, are more particularly described as the
       following items from the residence of [Proctor‘s address].

               (1) Semen
               (2) Sexual toys and pornographic material (movies, pictures, magazines)
Proctor contends that the above description is not such that the executing officer would be left
with no discretion to decide what may be seized. See Williams v. Kunze, 806 F.2d 594 (5th Cir.
1986); Winkfield v. State, 792 S.W.2d 727, 731-32 (Tex. App.—Corpus Christi 1990, pet. ref‘d).

                                                 7
         ―[W]hen courts examine the description of the place to be searched to determine the
warrant‘s scope, they follow a common sense and practical approach, not a ‗Procrustean‘ or
overly technical one.‖ Long v. State, 132 S.W.3d 443, 448 (Tex. Crim. App. 2004). In addition
to the quoted excerpt above, the affidavit also contained Proctor‘s address and a description of
the residence. It provided that the most recent sexual assault had taken place in Proctor‘s
bedroom. It provided that the vibrating toy that Proctor attempted to insert into K.T.‘s vagina
and the pornographic movie that Proctor played on his bedroom television during the sexual
assault were both retrieved by Proctor from his bedroom dresser. Additionally, it provided
where on the bedroom floor Proctor‘s semen landed after he removed his penis from K.T.‘s
mouth.
         Read as a whole, the warrant and the affidavit contained sufficient descriptions of the
items to be seized and also demonstrated that the items sought constituted evidence of a crime.
The officers who conducted the search were not left to their own discretions to decide what could
be seized. Moreover, the only items seized in the execution of the warrant were those described
in the warrant: pornographic movies, sex toys, a pornographic magazine, and two swabs from
the bedroom floor. All of these items were seized from Proctor‘s bedroom.
         On this same issue, Proctor specifically contends that the warrant‘s description of
―semen‖ is insufficient because it did not distinguish whose semen was to be seized. Proctor
does not indicate how identifying whose semen was to be seized from Proctor‘s residence would
help the police in narrowing their search.       Nevertheless, as described above, the affidavit
indicated that the semen was Proctor‘s. Furthermore, the affidavit contained a specific location
where the semen would be – Proctor‘s bedroom floor.
         Additionally, Proctor argues that the description of the pornographic materials and sexual
toys was too general. During the trial, Proctor argued in support of his objection that the picture
of the open drawer containing various pornographic movies and sexual toys in Proctor‘s
bedroom dresser should not be allowed into evidence until K.T. specifically identified the ones
that were used during the assault. The State argued that it was unrealistic to expect her to know
which one was used during the sexual assault. We agree; when read as a whole, the description
provided in the warrant and affidavit was sufficient. The magistrate did not abuse his discretion
when he found that the search warrant described the items to be seized with sufficient specificity.



                                                 8
Proctor‘s contention that the warrant failed due to its description being too general is overruled.
We overrule Proctor‘s first issue on appeal.
       The judgment of the trial court is affirmed.



                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE

October 6, 2011
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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