
                                          NO. 07-09-0009-CR
                                          NO. 07-09-0010-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                             MAY 20, 2010








                                 CHRISTOPHER DEMONT SMITH, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                            FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                         NOS. 57,392-A & 57,393-A; HONORABLE HAL MINER, JUDGE





Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION


      Appellant, Christopher Demont Smith, was convicted by a jury of one count of indecency  with  a
child[1] and three counts of aggravated sexual assault of a child[2] and sentenced  to  four  periods
of confinement.[3]  In addition to the  periods  of  incarceration  ordered,  each  judgment  ordered
Appellant "to pay all fines, court costs, and restitution as indicated above."   In  each  case,  the
judgment was blank  as  to  "Court  Costs."   By  six  issues,  Appellant  contests:  (1)  the  legal
sufficiency of the evidence; (2) the factual sufficiency of the evidence of indecency with  a  child;
and (3) aggravated sexual assault; (4) whether the trial court violated Appellant's  Sixth  Amendment
right to confrontation; and, (5) & (6) the trial court's  assessment  of  court-appointed  attorney’s
fees.  We modify the trial court's judgment in Cause No. 57,392-A to clarify that payment  of  $5,000
in court-appointed attorney's fees is not a part of the court costs ordered in this case  and  affirm
the judgment as modified.  The judgment in Cause No. 57,393-A is affirmed.


      Issue One -- Legal Sufficiency of the Evidence


      Appellant was charged with sexually abusing S.N.B. at a time  when  she  was  five  years  old.
Appellant contends the lack of physical evidence of sexual abuse during an examination of  S.N.B.  by
Dr. Rebecca Hough, and the subsequent appearance of physical evidence of  sexual  abuse  at  a  later
examination, when coupled with his lack of access  to  the  child  during  that  intervening  period,
conclusively proves that any sexual abuse to the child was perpetrated by someone other than him.


      A.    Standard of Review


      When conducting a legal sufficiency review of the evidence to support  a  criminal  conviction,
we view 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  offense  beyond  a  reasonable  doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);  Drichas  v.  State,
175 S.W.3d 795, 798 (Tex.Crim.App. 2005).  We  do  not  resolve  any  conflict  of  fact,  weigh  any
evidence, or evaluate the credibility of any witnesses, as this is  the  function  of  the  trier  of
fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).  Instead, we determine  whether
both the explicit and implicit findings of the  trier  of  fact  are  rational  by  viewing  all  the
evidence admitted at trial in the light most favorable to the adjudication.  Adelman  v.  State,  828
S.W.2d 418, 422 (Tex.Crim.App. 1992).  In so doing, we resolve any inconsistencies  in  the  evidence
in favor of the adjudication.  Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).


      B.    Dr. Hough's Testimony


      Dr. Hough testified she first saw S.N.B. on October 2, 2007, for  the  purpose  of  determining
whether S.N.B. had a urinary tract infection.  Dr. Hough testified S.N.B.'s physical examination  was
limited to checking her heart and lungs.   She  did  not  testify  to  any  examination  of  S.N.B.'s
genitalia.


      At a second visit on October  19,  2007,  Dr.  Hough  examined  S.N.B.  to  determine  why  she
continued to wet her pants.  During this examination, Dr. Hough examined S.N.B.'s vaginal area.   She
found evidence of sexual abuse, i.e., bruising,  blister-type  lesions,  and  hardened  tissue.   Dr.
Hough testified the hardened mass of tissue indicated damage over time or chronic damage.   When  Dr.
Hough asked S.N.B. whether anyone touched her inappropriately, S.N.B. named Appellant.   S.N.B.  also
told Dr. Hough that Appellant "put where he pees in where she pees," and, "[w]hen she  told  him  no,
he hit her, and he's done this many times."  Dr. Hough was not asked, and did not offer, any  opinion
regarding when S.N.B. might have suffered the trauma she described.


      Having reviewed the entire record, we find no evidence indicating that  the  trauma  discovered
by Dr. Hough during the second examination occurred exclusively between the time she  first  examined
S.N.B. and the second examination.   Furthermore, even if  Dr.  Hough's  testimony  established  that
S.N.B. was  sexually  assaulted  during  that  period,  that  fact  does  not  mutually  exclude  the
possibility that Appellant assaulted her during some  other  period.  The  evidence  does  show  that
S.N.B. named Appellant in outcries of sexual abuse made to Dr.  Hough,  Kim  Hardy--her  grandmother,
and Becky O'Neal, a Sexual Assault Nurse Examiner, who also found evidence of sexual abuse  when  she
examined S.N.B.  This evidence is legally sufficient to support the jury's verdict.  See Castillo  v.
State, 913 S.W.2d 529, 535 n.3  (Tex.Crim.App.  1995);  Rodriguez  v.  State,  955  S.W.2d  171,  174
(Tex.App.--Amarillo 1997, no pet.).  See also Coronado v. State, No. 07-08-0496-CR,  2010  Tex.  App.
LEXIS 2401, at *9 (Tex.App.--Amarillo  March  31,  2010,  no  pet.  h.).   Accordingly,  we  overrule
Appellant's first issue.






Issues Two and Three -- Factual Insufficiency


      A.    Standard of Review


      When conducting a factual sufficiency review, we examine all the evidence in  a  neutral  light
and determine whether the  trier  of  fact  was  rationally  justified  in  finding  guilt  beyond  a
reasonable doubt.  Roberts v. State, 220 S.W.3d 521, 524  (Tex.Crim.App.  2007),  cert.  denied,  552
U.S. 920, 128 S.Ct. 282, 169 L.Ed.2d 206 (2007); Watson v. State, 204 S.W.3d 404, 415  (Tex.Crim.App.
2006).  We give deference to the fact finder's  determination  when  supported  by  the  record,  and
cannot reverse a conviction unless we find some objective basis in the record demonstrating that  the
great weight and preponderance of the evidence contradicts the verdict.  Watson, 204 S.W.3d  at  417.
The criminal verdict will be set aside "only if the evidence is so weak that the verdict  is  clearly
wrong and manifestly unjust, or the contrary evidence so strong that the standard of proof  beyond  a
reasonable doubt could not have been met."  Garza  v.  State,  213  S.W.3d  338,  343  (Tex.Crim.App.
2007).  In addition, the fact finder is entitled to judge the credibility of the  witnesses  and  may
choose to believe all, or some, or none of the testimony presented.  Chambers v.  State,  805  S.W.2d
459, 461 (Tex.Crim.App. 1991).


      Additionally, as directed by the Texas Court of Criminal Appeals,  when  conducting  a  factual
sufficiency review, we must include a discussion of the most important  and  relevant  evidence  that
supports the appellant's complaint on appeal.  Sims v.  State,  99  S.W.3d  600,  603  (Tex.Crim.App.
2003).  This does not, however, mean that we are required to discuss all evidence admitted at  trial.
 See id.  See also Roberts v. State, 221 S.W.3d 659, 665  (Tex.Crim.App.  2007).   In  that  respect,
Appellant contends the State's evidence of indecency with a child is factually insufficient  because:
 (1) S.N.B.'s testimony at trial was inconsistent; (2) neither Dr. Hough nor the SANE  nurse  swabbed
S.N.B. for DNA evidence; (3) Hardy's testimony was biased against Appellant because of his race;  and
(4) the police did not interview S.N.B.'s grandparents.


      B.    Indecency with a Child


      A person commits the offense of indecency with a child if a person engages  in  sexual  contact
with the child or causes the child to engage in sexual contact.  Tex. Penal Code Ann.  §  21.11(a)(1)
(Vernon Supp. 2009).  The term "sexual contact" means any of the following  acts  if  committed  with
the intent to arouse or gratify the  sexual  desire  of  any  person;  "any  touching  by  a  person,
including touching through clothing, of the anus, breast, or any part of the genitals  of  a  child,"
id. at § 21.11(c)(1), or "any touching of any part  of  the  body  of  a  child,  including  touching
through clothing, with the anus, breast, or any part  of  the  genitals  of  a  person."   Id.  at  §
21.11(c)(2).


      In  addition  to  Dr.  Hough's  testimony  described  above,  Hardy's  and  S.N.B.'s  testimony
corroborated Dr. Hough's account of her outcry.  S.N.B. also testified Appellant touched her  in  her
"special place" and "it hurt."  O'Neal, the nurse who conducted S.N.B.'s SANE examination,  testified
S.N.B. told her that Appellant "touch[ed] her pee pee," "put his mouth on [her] pee pee," and "put  a
nail in [her] butt and put a seed in her butt."  O'Neal testified S.N.B.'s  SANE  examination  showed
evidence of sexual abuse in her vaginal area and  her  anus  showed  immediate  dilation,  indicating
repeated penetration.  Dr. Hough's examination corroborated the results of O'Neal's examination  with
regard to S.N.B.'s vaginal area.


      Any inconsistency between S.N.B.'s prior outcries and  her  testimony  at  trial  went  to  her
credibility.  Based upon the evidence recounted above, the jury could have reasonably  believed  that
Appellant engaged in sexual contact with S.N.B. even though some  of  S.N.B.'s  trial  testimony  was
inconsistent with her earlier out-of-court statements and her in-court testimony.  See, e.g.,  In  re
A.B., 133 S.W.3d 869, 873-74 (Tex.App.--Dallas 2004, no pet.); Washington v. State, 127  S.W.3d  197,
204 (Tex.App.--Houston [1st Dist.] 2003, pet. dism'd).  Moreover,  our  evaluation  of  the  evidence
"should not substantially intrude upon  the  jury's  role  as  the  sole  judge  of  the  weight  and
credibility of witness testimony."  Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.  1996),  cert.
denied, 522 U.S. 832, 118 S.Ct. 100, 39 L.Ed.2d 54 (1997).   Accordingly,  to  the  extent  Appellant
claims the evidence is factually insufficient because S.N.B.'s prior statements  were  not  credible,
we hold that the evidence in support of the jury's verdict was not so weak as to render  the  verdict
clearly wrong or manifestly unjust.


      Appellant does not cite any case law or other authority  in  support  of  his  contention  that
evidence of indecency with a child is factually insufficient in  the  absence  of  the  victim  being
swabbed for DNA.  Thus, this contention was insufficiently briefed, and therefore, waived.   Tex.  R.
App. P. 38.1(h).  See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000).


      Neither does Appellant cite any case law or other authority in support of his  contention  that
evidence of indecency  with  a  child  is  factually  insufficient  in  the  absence  of  the  police
interviewing the  victim's  guardian  or  grandparents.   This  contention  was  also  insufficiently
briefed, and therefore, waived.  Tex. R. App. P. 38.1(h).  See Cardenas, 30 S.W.3d at 393.


      Furthermore, to the extent that this portion of Appellant's argument is that  the  evidence  is
insufficient because S.N.B.'s grandparents were racially biased, whether  a  witness's  testimony  is
racially motivated goes to the credibility of the witness  and  the  weight  to  be  given  to  their
testimony.   The  jury  is  the  "exclusive  judge  of  the  credibility  of  witnesses,"   and   the
reconciliation of conflicts in the testimony is also within the "exclusive  province  of  the  jury.”
See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007); id. at art. 38.04 (Vernon 1979); Jones,  944
S.W.2d at 647.  By rendering a guilty verdict, the jury apparently chose to accept  the  truthfulness
of Hardy's testimony that S.N.B.'s behavior markedly changed after  she  visited  Appellant  and  his
wife, as well her account of S.N.B.'s outcry to Dr. Hough.  Washington, 127 S.W.3d at 204.  The  jury
could have also believed Hardy's testimony that, even though  she  "didn't  like  the  idea"  of  her
daughter being with a black man, she "just accepted it and went about [her] business."


      Accordingly, we find the State's evidence in support of the jury's verdict of guilty as to  the
offense of indecency with a child was not  so  weak  as  to  render  the  verdict  clearly  wrong  or
manifestly unjust.  Appellant's second issue is overruled.






C.    Aggravated Sexual Assault


      Appellant contends the State's  evidence  of  aggravated  sexual  assault  at  trial  was  also
factually insufficient because:  (1) S.N.B.'s testimony was inconsistent; (2) terms  used  by  S.N.B.
in her outcry were unexplained; and (3) S.N.B.'s outcry to Dr. Hough was made while Hardy was in  the
room.


      A person commits the offense of aggravated sexual  assault  if  the  person,  intentionally  or
knowingly, causes the penetration of the anus or sexual organ of a child, younger than  14  years  of
age, by any means, or causes the sexual organ of a child to contact or penetrate the mouth, anus,  or
sexual organ of another person, including the actor.   Tex.  Penal  Code  Ann.  §  22.021(a)(1)(B)  &
(a)(2)(B) (Vernon Supp. 2009).


      S.N.B.'s outcry statement to Dr. Hough is described  above.   Hardy's  and  S.N.B.'s  testimony
corroborated Dr. Hough's account of S.N.B.'s outcry, O'Neal's testimony  supported  S.N.B.'s  version
of the events, and Dr. Hough's examination corroborated the  results  of  O'Neal's  SANE  examination
with regard to the existence of trauma to S.N.B.'s vaginal area.  Any inconsistency between  S.N.B.'s
prior outcries and her testimony  at  trial  went  to  her  credibility.   Based  upon  the  evidence
recounted above, the jury could reasonably have believed that  Appellant  committed  the  offense  of
aggravated sexual assault.  See, e.g., In re A.B., 133 S.W.3d at 873-74; Washington,  127  S.W.3d  at
204.  The fact that S.B.N.'s testimony was inconsistent does not make it factually insufficient.


      Appellant next contends the evidence was factually insufficient because  there  were  terms  in
S.N.B.'s outcry to O'Neal that were unexplained by S.N.B.  In sexual abuse cases, a child victim  may
testify using language appropriate for his/her age  to  describe  the  sexual  assault  because  "one
cannot expect the child victims of violent crimes to testify with the same clarity and ability as  is
expected of mature and capable adults;" Villalon v. State, 791 S.W.2d 130, 134  (Tex.Crim.App.  1990)
(en banc), and a child victim's outcry statement alone can be sufficient to support a conviction  for
aggravated assault.  Coronado, 2010 Tex. App. LEXIS 2401 at *9; Kimberlin v. State, 877  S.W.2d  828,
831 (Tex.App.--Fort Worth 1994,  pet.  ref'd)  (citing  Rodriguez  v.  State,  819  S.W.2d  871,  873
(Tex.Crim.App. 1991) (en banc).  Further, putting aside  the  terms  contested  by  Appellant,  there
remains sufficient evidence upon which a jury could reasonably base its verdict.


      Finally, Appellant attempts to make a connection between S.N.B.'s outcry  to  Dr.  Hough,  made
while Hardy was in the room, and S.N.B.'s testimony that "Momma Kim [Hardy] told  her  what  to  say"
and she "[didn't] know what [Hardy] told her."  Whether this testimony affected  the  verdict  was  a
matter left to the jury's sound discretion.  The fact finder is entitled to make these decisions  and
may choose to believe all, some, or none of the testimony presented.  Chambers, 805  S.W.2d  at  461.
By rendering a guilty verdict, the jury apparently chose  to  accept  the  truthfulness  of  S.N.B.'s
testimony.  Washington, 127 S.W.3d at 204.


      Accordingly, we find the State's evidence in  support  of  the  jury's  verdict  of  guilty  of
aggravated sexual assault of a child was not so weak as  to  render  the  verdict  clearly  wrong  or
manifestly unjust.  Appellant's third issue is overruled.



Issue Four -- Sixth Amendment


      Appellant next contends the trial court violated his Sixth  Amendment  right  to  confront  his
accuser by permitting the State's prosecutor to stand between S.N.B. and Appellant during  a  portion
of her testimony.  During the State's direct examination of S.N.B., the  State's  attorney  requested
permission from the trial court to stand between S.N.B. and Appellant.  The State's  attorney  stated
that he did "not want to block [Appellant's] view but [S.N.B.] keeps looking  over  at  him  and  I'm
concerned now. . . ."  The trial court granted the State's request over Appellant's  Sixth  Amendment
objection based on Crawford.[4]


      The Sixth Amendment provides, in relevant part,  that  "[i]n  all  criminal  prosecutions,  the
accused shall enjoy the right . . . to be confronted with the witnesses  against  him.   U.S.  Const.
amend. VI.[5]  The Confrontation Clause reflects  a  preference  for  face-to-face  confrontation  at
trial, but that preference must occasionally give way to considerations  of  public  policy  and  the
necessities of the case.  Maryland v. Craig, 497 U.S. 845, 849,  110  S.Ct.  3157,  111  L.Ed.2d  666
(1990); Coronado, 2010 Tex. App. LEXIS 2401 at *9 (construing the  public  policy  considerations  of
article  38.071,  section  2(b)  of  the  Texas  Code  of  Criminal  Procedure,  as  an   appropriate
constitutional accommodation in lieu of  face-to-face  confrontation).   The  United  States  Supreme
Court has stated that an exception to the right of face-to-face confrontation exists when  the  State
shows that a special procedure is necessary to protect child witnesses from the trauma of  testifying
in court.  See Craig, 497 U.S. at 855.[6]


      Here, S.N.B. appeared at trial and  was  subject  to  cross-examination.   Appellant  does  not
assert that she was hidden from the jury's view or from his counsel's view at any time while she  was
testifying.  Rather, she testified under oath in view of  the  jury  while  Appellant's  counsel  was
given an unfettered opportunity to cross-examine  S.N.B.  while  Appellant  was  in  her  full  view.
Accordingly, we cannot say Appellant was denied his constitutional  right  to  confrontation  by  the
limited accommodation made during the State's direct examination.  See Moore  v.  State,  169  S.W.3d
467, 470 n.8 (Tex.App.--Texarkana 2005, pet. ref'd) ("[W]hen  a  witness  appears  at  trial  and  is
subject to cross-examination, the Confrontation Clause  is  not  violated.").   See  also  Palmer  v.
State, 716 S.W.2d 174, 176-77 (Tex.App.--Houston [14th Dist.] 1986, pet.  ref'd),  motion  for  reh'g
denied, 741 S.W.2d 451 (Tex.Crim.App. 1987) (per curiam).  Appellant's fourth issue is overruled.






Issue Five and Six -- Court-Appointed Attorney’s Fees


      By issues five and six, Appellant makes  a  two  prong  attack  on  what  he  contends  is  the
erroneous assessment of attorney's fees in this case.  The first prong of Appellant's attack is  that
a trial court may not order a criminal defendant to repay  the  State  for  the  costs  of  a  court-
appointed attorney without making a determination, based upon competent evidence, that the  defendant
has financial resources that enable him to offset in part or in whole the  costs  of  legal  services
provided.  In support of this prong of  his  attack,  Appellant  relies  heavily  upon  this  Court's
decision in Mayer v. State, 274 S.W.3d 898 (Tex. App.--Amarillo 2008)  aff’d,  No.  PD-0069-09,  2010
Tex.Crim.App. LEXIS 100 (Tex.Crim.App. March 24, 2010). The second prong  of  Appellant's  attack  is
that the trial court erred because it did not orally pronounce the assessment of attorney’s  fees  at
sentencing, nor did it declare the precise amount of attorney's fees in  its  written  judgment.   In
support of this prong of his attack, Appellant relies upon  the  decision  in  Burke  v.  State,  261
S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) (holding that a judgment assessing  an  undetermined
amount of attorney's fees was error where the trial court did  not  order  the  Defendant  to  pay  a
specific amount of attorney's fees either in its oral pronouncement or its written  judgment).     In
response, the State does not address the second prong; but, instead, urges this Court  to  reconsider
its judgment and opinion in Mayer.[7]






A.    Reimbursement of Attorney's Fees


      Appellant contends the trial court erred by ordering him to repay the State for  the  costs  of
his court-appointed attorney.  Under article 26.05 of the Texas Code of Criminal Procedure,  a  trial
court has authority to order reimbursement of appointed attorney’s  fees  if  the  court  determines,
based upon sufficient evidence, that a defendant has financial resources that enable him  to  offset,
in part or in whole, the costs of the legal services provided.  See Tex. Code Crim. Proc.  Ann.  art.
26.05(g) (Vernon Supp. 2009).  The record before us does not contain a determination  or  finding  by
the trial court that Appellant had any financial  resources  or  was  "able  to  pay"  the  appointed
attorney’s fees.


      The record reflects that on March 26, 2008, Appellant filed an  affidavit,  including  relevant
financial information, wherein he requested the appointment of counsel for representation  at  trial.
On March 27, 2008, the trial court granted his request and appointed  counsel.   Again,  on  December
18, 2008, Appellant filed a Pauper's Oath on Appeal petitioning the trial court to appoint  appellate
counsel on appeal, and again on January 5, 2009, the trial court determined he was entitled  to  that
relief, ordered the court reporter to prepare a reporter's record, and  appointed  appellate  counsel
to assist Appellant in the presentment of his appeal.  Unless a  material  change  in  his  financial
resources occurs, once a criminal defendant has been found to be indigent, he is presumed  to  remain
indigent for the remainder of the proceedings.  Tex. Code Crim.  Proc.  Ann.  art.  26.04(p)  (Vernon
Supp. 2009).  Therefore, while there is no evidence of record  demonstrating  a  material  change  in
Appellant's financial resources, there was  ample  evidence  demonstrating  that,  before  trial  and
immediately following rendition  of  judgment,  Appellant  was  indigent  and  qualified  for  court-
appointed counsel.


      Without evidence demonstrating Appellant's financial ability  to  offset  the  costs  of  legal
services, any order requiring Appellant to reimburse the State for the costs of  his  court-appointed
attorney would be  error.   See  Mayer  v.  State,  No.  PD-0069-09,  2010  Tex.Crim.App.  LEXIS  100
(Tex.Crim.App. March 24, 2010).  Accordingly, Appellant's fifth issue is sustained.


      B.    Assessment of Undetermined Amount of Attorney's Fees

      The second prong of Appellant's attack is premised on the argument that  the  trial  court  did
not order Appellant to pay  a  specific  amount  of  attorney's  fees,  either  by  pronouncement  at
sentencing or in the written judgment.  Even though the State does not  address  this  argument,  the
validity of Appellant's premise is incorrect.   The  judgment  in  question  appears  to  be  a  form
customarily used  by  the  district  courts  of  Potter  County,  Texas.   The  introductory  summary
statements contained on the first page of the judgment state:
   ________________________________________________________________
   Fine:          Court Costs:          Restitution:           Restitution Payable to:
   N/A            $               $ N/A       __   Victim__ Agency/Agent



      Page two of the judgment contains the statement: "The Court Orders Defendant to pay all  fines,
court costs, and restitution as indicated above."  (Emphasis in original).  Even though the  judgment
in question shows a blank for court costs,  the  Bill  of  Costs  contained  in  the  Clerk's  Record
indicates that Appellant was required to pay $5,000 for court-appointed attorney's fees in Cause  No.
57,392-A.  The Bill of Costs in Cause No. 57,393-A does not include an amount  for  attorney's  fees.
A cost indicated on a certified Bill of Costs prepared by the District Clerk can be collected from  a
criminal defendant.  See generally Tex. Code Crim. Proc. Ann. art. 103.001, et  seq.  (Vernon  2006).
Therefore, to the extent that the judgment does order Appellant to pay court costs, we find  that  it
does order him to pay a definite and defined amount of attorney's fees.  Appellant's sixth  issue  is
overruled.


                                              Conclusion


      Having determined that the trial court erred by requiring Appellant to reimburse the State  for
the costs of his court-appointed attorney, we modify the judgment in Cause No.  57,392-A  to  clarify
that the order to pay court costs  does  not  include  a  requirement  that  he  pay  the  $5,000  in
attorney's fees contained in the Bill of Costs.  As modified, the trial  court’s  judgment  in  Cause
No. 57,392-A is affirmed.  The trial court’s judgment in Cause No. 57,393-A is affirmed.

                                             Patrick A. Pirtle
                                                   Justice




Do not publish.

-----------------------
[1]See Tex. Penal Code Ann. § 21.11(a)(1) Vernon Supp. 2009).

[2]See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2009).



[3]Appellant was originally charged with two counts of indecency with a child in Cause No.  57,392-A,
and three counts of aggravated sexual assault of a child in Cause No. 57,393-A.  In Cause No. 57,392-
A, the jury found Appellant guilty of count 1 and sentenced  him  to  five  years  confinement.   The
trial court issued an instructed verdict of not guilty as to count two.  In Cause No.  57,393-A,  the
jury found Appellant guilty of all three counts of aggravated sexual assault  and  sentenced  him  to
sentences of thirty-five years, thirty-five years, and fifteen years respectively.  The  trial  court
ordered that the five year sentence be served concurrent to any  other  period  of  confinement,  and
that the remaining sentences be served consecutively.

[4]In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United  States
Supreme Court held that in-court testimony or its functional  equivalent  (i.e.,  "material  such  as
affidavits, custodial examinations, prior testimony that the defendant was unable  to  cross-examine,
or similar pre-trial statements that declarants would reasonably expect to be used  prosecutorially")
may not be used as evidence against an accused unless the accused has an opportunity to confront  and
cross-examine the maker of the statement.  Id. at 51.

[5]This right to confrontation was made applicable to the states by the Due  Process  Clause  of  the
Fourteenth Amendment.  Pointer v. Texas, 380 U.S. 400, 403, 85  S.Ct.  1065,  1068,  13  L.Ed.2d  923
(1965).

[6]The determination of whether alternative forms of testimony are necessary  should  be  made  on  a
case-by-case basis.  See Craig, 497 U.S. at 855.  Contrary to Appellant's contention, Texas  Code  of
Criminal Procedure article 38.071 is inapplicable  here  because  the  article  "applies  only  to  a
hearing or proceeding in which the court determines that a child  .  .  .  would  be  unavailable  to
testify in the presence of the defendant. . . ."  Tex. Code Crim. Proc. Ann. art. 38.071 § 1  (Vernon
Supp. 2009).  Here, S.N.B. did testify in Appellant's presence.

[7]At the time the State filed its brief it did not  have  the  benefit  of  the  Court  of  Criminal
Appeals’s decision in Mayer v. State, No. PD-0069-09, 2010  Tex.Crim.App.  LEXIS  100  (Tex.Crim.App.
March 24, 2010).



