                                MEMORANDUM OPINION
                                        No. 04-11-00283-CR

                                    Zachary David WARNELL,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 198th Judicial District Court, Kerr County, Texas
                                     Trial Court No. B10532
                         The Honorable M. Rex Emerson, Judge Presiding

                   OPINION ON APPELLANT’S MOTION FOR REHEARING
Opinion by:      Steven C. Hilbig, Justice

Sitting:         Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: May 23, 2012

AFFIRMED

           On April 4, 2012, we issued an opinion and judgment affirming the trial court’s

judgments. Thereafter, appellant, Zachary David Warnell, filed a motion for rehearing. The

motion for rehearing is denied. However, we withdraw our April 4, 2012 opinion and judgment

and substitute this opinion and judgment in order to address issues raised by Warnell in his

supplemental brief.
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                                         BACKGROUND

       Warnell was charged in a two-count indictment with sexual assault of a child. The first

count alleged Warnell inserted his sexual organ into the complainant’s sexual organ, and the

second alleged Warnell caused his mouth to contact the complainant’s sexual organ.           The

complainant, K.F., testified the assault took place in the bathroom of the house where she was

living. She was fifteen years old at that time. She testified Warnell placed his mouth on her

vagina and inserted his penis into her vagina. Betty Mercer, a Sexual Assault Nurse Examiner,

testified that she examined K.F. the day after the assault and obtained a vaginal swab during the

examination. Emma Becker, a forensic scientist with the Department of Public Safety, testified

she compared the vaginal swabs with a sample of Warnell’s DNA and concluded that Warnell’s

DNA formed a major component of the sperm cell fraction found on the vaginal swab. Becker

stated that the odds of another person unrelated to the defendant having the same DNA profile as

Warnell are at least one in 115 quintillion — more than the current population of the earth. She

also testified that spermatozoa were also found on the vaginal swab. She did not conduct a test

on the sample to determine the presence of saliva.

       The State also introduced into evidence an excerpt from a video statement Warnell made

to the Kerr County Sheriff’s office days after the assault. During the interview, Warnell denied

having sexual relations with K.F., claiming that he last saw her weeks before the interview. He

also refused to voluntarily provide a DNA sample.

       Acting pro se, Warnell appeals the judgments of the trial court, arguing the evidence is

legally insufficient to support the verdict in Count Two, conviction on both counts violates his

double jeopardy rights, and the trial court erred by not ensuring bench conferences were

recorded. In his supplemental brief, Warnell complained of bias on the part of the trial judge,



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ineffective assistance of counsel, and the trial court’s denial of his motion to replace counsel.

We affirm the judgments.

                                 SUFFICIENCY OF THE EVIDENCE

       In a challenge to the sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found the

essential elements of the charged offense beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 899, 912 (Tex. Crim. App. 2010). We defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the weight to

be given their testimony. Id. at 899.

       Warnell attacks the sufficiency of the evidence to support the second count, arguing the

evidence does not prove his mouth contacted K.F.’s sexual organ because the scientist did not

find any saliva in the vaginal swab. We disagree with the argument. K.F. testified several times

that Warnell placed his mouth on her vagina. This testimony alone was sufficient to permit a

rational jury to find beyond a reasonable doubt that Warnell caused his mouth to contact the

complainant’s sexual organ.

                                        DOUBLE JEOPARDY

       Warnell contends that both of his convictions arose during a single incident or episode,

and double jeopardy prevents the affirmance of both convictions. We disagree. The Court of

Criminal Appeals has made it clear that section 22.011(a)(2) of the Texas Penal Code, which

defines sexual assault of a child, establishes separate offenses based on the type of penetration or

contact. See Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 2006). Penetration of a

child’s sexual organ is prohibited by section 22.011(a)(2)(A), and causing the actor’s mouth to

contact the child’s sexual organ is prohibited by section 22.011(a)(2)(C). See TEX. PENAL CODE



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ANN. §§ 22.011(a)(2)(A), 22.011(a)(2)(C) (West 2011). K.F. testified Warnell used his sexual

organ to penetrate her sexual organ, and used his mouth to contact her vagina. These are

separate offenses and the convictions on both counts do not violate double jeopardy protections.

                           FAILURE TO RECORD BENCH CONFERENCES

       In his last point of error, Warnell complains the trial court erred by failing to ensure

bench conferences during trial were recorded by the court reporter. However, Warnell fails to

direct the court to any place in the record where an unrecorded bench conference occurred. See

TEX. R. APP. P. 38.1 (requiring appellant’s brief to contain appropriate citations to authorities and

to the record). As such, his brief presents nothing for review. See Stahle v. State, 970 S.W.2d

682, 692 (Tex. App.—Dallas 1998, pet. ref’d).            Furthermore, our review of the record

demonstrates that numerous bench conferences conducted during trial were recorded.

                                      SUPPLEMENTAL ISSUES

       After this appeal was set for submission, but before it was submitted, Warnell filed a

supplemental brief, raising several additional issues. As a general rule, an appellant is required

to bring all points of error or issues sought to be reviewed in his original brief. Rochelle v. State,

791 S.W.2d 121, 124 (Tex. Crim. App. 1990). We are not required to consider issues raised for

the first time in a reply or supplemental brief without leave of court. Id. However, we may, in

our discretion, consider such issues. See id.

       Warnell’s supplemental brief asserts the trial judge may have been biased because he had

been the prosecuting attorney in previous unrelated charges against Warnell. This issue is not

properly before us because it was not raised in the trial court and therefore was not preserved for

appellate review. See Tex. R. App. P. 33.1(a); see also Long v. State, 137 S.W.3d 726, 736 (Tex.

App.—Waco 2004, pet. ref’d) (trial judge who prosecuted appellant in previous case but did not



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participate in prosecution of pending case was not required to recuse and counsel did not provide

ineffective assistance by failing to file motion to recuse).

       Warnell next contends his appointed trial counsel provided ineffective assistance because

he “never brought up whether the incident was consensual or forced.” We disagree that this

shows counsel was ineffective because consent or lack of consent is irrelevant in a prosecution

under section 22.011(a)(2) of the Penal Code. See Pawson v. State, 865 S.W.3d 36, 36 (Tex.

Crim. App. 1993). Finally, Warnell appears to complain about the trial court’s denial of his

motion to replace appointed counsel. However, Warnell provides no argument, authority, or

citations to the record to support his contention. Moreover, Warnell did not present any evidence

or argument at the hearing on the motion that would lead us to conclude the trial court’s ruling

was an abuse of discretion.

                                            CONCLUSION

       The judgments of the trial court are affirmed.




                                                       Steven C. Hilbig, Justice


DO NOT PUBLISH




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