                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00118-CR


BEN DANIEL WILLIAMS                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Ben Daniel Williams appeals his convictions for two counts of

aggravated sexual assault of a child and one count of indecency with a child.

In four points, he argues that the evidence is insufficient to support his conviction

for one of his aggravated sexual assault counts, that his convictions violate the

constitutional prohibition against double jeopardy, and that the trial court erred by



      1
       See Tex. R. App. P. 47.4.
admitting testimony from an outcry witness and allowing evidence regarding his

prior felony conviction during the guilt phase of the trial. We affirm.

                                Background Facts2

      B.B. (hereinafter Brandy) lived with her mother, Donna Martin, in

Arlington.3   Martin met appellant over the phone while she was working.

Appellant, who was a truck driver, eventually moved with Martin and Brandy into

a two-bedroom apartment. Martin was frequently away from home at times that

only Brandy and appellant were there.

      According to Brandy‘s testimony at trial, when she was eleven years old,

during the summer between her fifth and sixth grade school years, appellant

―started paying more attention‖ to her. He bought her several things, including a

cell phone. One day, when Brandy and appellant were on a couch, appellant put

his hand under Brandy‘s shirt and rubbed her breasts.4 On another occasion,

while appellant and Brandy were watching television, he untied her shorts, lifted

her legs, and put his mouth on her vagina for five to seven minutes. A couple of

days after that, appellant took off Brandy‘s clothes and his pants, and he put his

mouth on her breasts and his penis in her vagina.               Appellant eventually

      2
       The facts in this section are based upon the evidence presented by the
State‘s witnesses. We will summarize appellant‘s testimony below.
      3
       To protect B.B.‘s identity, we will use an alias.
      4
         Before trial, Brandy said that appellant inappropriately touched her the
first time while she was in her room. She said that appellant bumped her bed to
wake her up, got on top of her, and fondled and kissed her breasts.


                                          2
ejaculated. Brandy bled from her vagina. Appellant had sexual intercourse with

Brandy on ten or eleven other occasions.

      Appellant and Martin eventually broke up, and Brandy moved in with

Mozelle Moore, her great aunt. Brandy was ―very angry inside‖ when she moved

in with Moore.    Months later, after Moore had asked Brandy several times

whether appellant had inappropriately touched her, Brandy told Moore, who did

not like appellant,5 about some of what had happened, and Moore called the

police. Brandy talked with the police, gave an interview to Teressa Norris, a

Child Protective Services (CPS) investigator, and went to a medical center,

where she learned that she ―had a lot of broken tissue.‖

      During the CPS interview, Brandy told Norris that appellant started abusing

her by, four or five times, squeezing her breasts with his hands under her clothes

and putting her breasts in his mouth. Brandy stated to Norris that appellant then

―went to licking her vagina and putting his private inside her vagina‖ about nine

times. Norris called appellant on the telephone, and he denied ever living with

Brandy and Martin.

      Arlington Police Department Detective Garth Savage investigated the case

against appellant and presented it to a district attorney. A grand jury indicted

appellant with two counts of aggravated sexual assault of a child, which is a first-



      5
        Moore said that when Brandy was living with appellant, ―something wasn‘t
setting right . . . with the whole situation.‖


                                         3
degree felony, and one count of indecency with a child, which, as alleged in the

indictment, is a second-degree felony.6 Appellant pled not guilty to all charges.

      Shellie Tidwell, who managed the apartment that Brandy, Martin, and

appellant had stayed in, confirmed at trial that appellant had lived there, and

appellant also conceded that fact at trial. Tidwell said that Brandy helped file

papers and answer phones in the apartment complex‘s office about three days

per week. According to Tidwell, Brandy ―wasn‘t the same‖ when Brandy was

around appellant; her ―head hung low the whole time.‖

      After the parties rested and presented closing arguments, the jury found

appellant guilty of each charge.     The jury then heard evidence concerning

appellant‘s punishment and assessed ten years‘ confinement for the first

aggravated sexual assault conviction, twenty-five years for the second

conviction, and five years for the indecency with a child conviction. The trial

court sentenced appellant accordingly. He brought this appeal.

                             Evidentiary Sufficiency

      In his first point, appellant argues that the evidence is insufficient to

support his conviction for the first count of aggravated sexual assault. Count one

of appellant‘s indictment alleged that appellant intentionally or knowingly caused

Brandy‘s sexual organ to contact his sexual organ.



      6
      See Tex. Penal Code Ann. §§ 21.11(a)(1), (d), 22.021(a)(1)(B), (2)(B), (e)
(Vernon Supp. 2010).


                                         4
      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to 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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).            This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

      To obtain appellant‘s conviction for aggravated sexual assault as alleged in

count one of his indictment, the State was required to prove that he intentionally

or knowingly caused Brandy‘s sexual organ to contact his sexual organ.

See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii);7 Johnson v. State, 882 S.W.2d

39, 42 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d).

       Appellant concedes that Brandy testified that appellant penetrated ―her

sexual organ with his penis,‖ but he contends that the State did not ―provide any

testimony alleging [he] caused [Brandy‘s] sexual organ to contact his sexual

organ.‖

      The record, however, provides plentiful evidence that appellant caused his

sexual organ to contact Brandy‘s sexual organ on multiple occasions. In addition

      7
        Appellant does not dispute that Brandy was younger than fourteen years
old at the time of the sexual assault. See id. § 22.021(a)(2)(B).


                                          5
to the facts described above, Donna Wright, a pediatric nurse practitioner,

testified that Brandy told her that appellant‘s ―private went in [her] private.‖

Brandy then clarified to Wright that Brandy meant that appellant‘s penis went

inside her vagina. Upon examining Brandy, Wright found that Brandy had a

healed tear of her hymen that was caused by traumatic penetration.

        The record contains some evidence that could have weakened Brandy‘s

testimony. Brandy was uncertain about which year appellant moved in with her

and Martin and about which year appellant assaulted her. She stated, ―[I]t‘s been

so long, I don‘t remember all the dates.‖ Brandy told Wright before trial that

appellant had last assaulted her in May 2008, while Brandy testified at trial that

the abuse stopped in August 2007.

        Appellant denied ever sexually touching Brandy, who he described as

―smart‖ and ―bright.‖ He said that he did not spend much time with Brandy but

that he was generally responsible for disciplining her. Appellant denied that he

told Norris that he had not lived with Brandy and Martin. He said that he was

shocked to hear that charges had been filed against him for sexually assaulting

Brandy. He believed that Brandy and Norris lied to the jury. He also denied that

Brandy acted differently around Tidwell when he was present, as Tidwell had

said.

        However, the trier of fact is the sole judge of the weight and credibility of

the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown

v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct.


                                          6
2075 (2009). Thus, when performing an evidentiary sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). Instead, we Adetermine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the prosecution and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at

778.

       Brandy testified to each element of count one, and her testimony alone

constitutes sufficient evidence to support appellant‘s conviction.        See, e.g.,

Halbrook v. State, 322 S.W.3d 716, 720 (Tex. App.—Texarkana 2010, no pet.);

Johnston v. State, 230 S.W.3d 450, 455 (Tex. App.—Fort Worth 2007, no pet.).

Furthermore, the jury‘s guilty verdict implies that despite the fact that there were

some inconsistencies between Brandy‘s testimony and statements she made

before trial about the details of appellant‘s crimes, the jury believed her

testimony. See Lugo v. State, 299 S.W.3d 445, 453 (Tex. App.—Fort Worth

2009, pet. ref‘d) (holding that a jury was free to believe a witness‘s trial testimony

over her prior statement made to the police); Hernandez v. State, 903 S.W.2d

109, 113 (Tex. App.—Fort Worth 1995, pet. ref‘d) (―The jury, being the judges of




                                          7
the facts and the credibility of the witnesses, could choose to believe or not

believe the witnesses or any portion of their testimony.‖).

      For all of these reasons, viewing the evidence in the light most favorable to

the verdict, we hold that the evidence is sufficient to sustain appellant‘s

conviction for aggravated sexual assault under count one of his indictment.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

We overrule his first point.

                                Double Jeopardy

      In appellant‘s second point, he contends that his conviction in count one of

the indictment, which concerns his sexual organ‘s contact with Brandy‘s sexual

organ, violates the constitutional prohibition against double jeopardy because he

was also convicted of count two, which regards his sexual organ‘s penetration of

her sexual organ. The indictment alleged that both of these counts occurred on

or about August 31, 2007.       The jury charge stated that the State was ―not

required to prove the exact date alleged in the indictment‖ but could show that

the offenses were committed before the expiration of the statute of limitations

and prior to the presentment of the indictment.

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. Const. amend. V.8 Generally, this clause protects against


      8
      Appellant also cites the Texas constitution‘s double jeopardy provision.
See Tex. Const. art. I, § 14. Appellant does not argue that we should analyze his

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(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225

(1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).

         Appellant bases his multiple punishment double jeopardy argument on an

assumption that counts one and two of his indictment relate to the same sexual

event.     He cites Patterson v. State for the proposition that a conviction for

aggravated sexual assault bars a conviction for conduct that is demonstrably part

of that same offense. 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (explaining that

―penile contact with mouth, genitals, or anus in the course of penile penetration

will be subsumed‖); see Gonzalez Soto v. State, 267 S.W.3d 327, 343 (Tex.

App.—Corpus Christi 2008, no pet.). But the State‘s evidence established that

appellant penetrated Brandy‘s sexual organ on multiple occasions.

         In a similar case in which a defendant was indicted for aggravated sexual

assault and indecency with a child, we explained,

                Generally, to preserve a double jeopardy claim, a defendant
         must object at or before the time the charge is submitted to the jury.
         An appellant is excused from the preservation requirement,
         however, when (1) the undisputed facts show the double jeopardy
         violation is clearly apparent on the face of the record and
         (2) enforcement of usual rules of procedural default serves no
         legitimate state interests.




state double jeopardy claim by using different standards than those that apply to
his federal claim.


                                           9
            The record reflects that Cabral was indicted for two separate
      offenses both alleged to have occurred ―on or about‖ June 1, 2000.
      The record further reflects that the complainant testified regarding
      two separate and distinct incidents of abuse . . . .

              It is well settled that the ―on or about‖ language of an
      indictment allows the State to prove a date other than the one
      alleged in the indictment as long as the date is prior to the
      presentation of the indictment and not so remote that prosecution is
      barred by the statute of limitations.        Here, the complainant‘s
      testimony described acts supporting each charge occurring prior to
      the presentation of the indictment and within the applicable statute of
      limitations period. Thus, we find no double jeopardy violation
      apparent on the face of the record. Cabral has therefore failed to
      meet the first prong of the exception to the preservation requirement
      . . . . Accordingly, we hold that Cabral failed to preserve his double
      jeopardy claim for our review.

Cabral v. State, 170 S.W.3d 761, 764–65 (Tex. App.—Fort Worth 2005, pet.

ref‘d) (mem. op.) (emphasis added) (citations and footnotes omitted).

      Appellant did not object to the jury charge or otherwise raise a complaint

about double jeopardy in the trial court.     Thus, as in Cabral, we hold that

Brandy‘s testimony of multiple sexual incidents that independently support each

count of appellant‘s indictment precludes appellant‘s double jeopardy claim

because a double jeopardy violation is not clearly apparent from the face of the

record. See id.; see also Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App.

2006) (―The fact that the jury‘s verdict could have relied on a theory that would

violate the Double Jeopardy Clause . . . is not sufficient to show a constitutional

violation ‗clearly apparent on the face of the record.‘‖); Vernon v. State, 841

S.W.2d 407, 410 (Tex. Crim. App. 1992) (―[T]hose who commit multiple discrete

assaults against the same victim, are liable for separate prosecution and


                                        10
punishment for every instance of such criminal misconduct.‖); Gonzalez Soto,

267 S.W.3d at 343 n.70 (citing cases in which courts held that there was no

double jeopardy violation when a defendant was convicted of multiple offenses

but the evidence showed as many sexual incidents); Martinez v. State, 212

S.W.3d 411, 422 (Tex. App.—Austin 2006, pet. ref‘d) (―Martinez has not

demonstrated that his conviction of indecency with a child by contact was based

on the same conduct underlying his conviction for aggravated sexual assault of a

child. Therefore, he has failed to show a double jeopardy violation.‖) (citation

omitted).

      We overrule appellant‘s second point.

                             Admission of Evidence

      In his third point, appellant argues that the trial court erred by allowing

Moore to testify as an outcry witness. Before the trial began, the State provided

appellant with notice of its intent to use Brandy‘s outcry statement to Moore.

When Moore testified, she said that while she and Brandy were sitting in a living

room watching television, Brandy cried while stating that appellant had

inappropriately touched her. Appellant did not object to Moore‘s testimony in that

regard.

      On appeal, appellant contends that Moore‘s testimony was improperly

admitted without a ―reliability hearing‖ outside the presence of the jury. Appellant

cites article 38.072 of the code of criminal procedure. See Tex. Code Crim. Proc.

Ann. art. 38.072 (Vernon Supp. 2010). Article 38.072 provides that in some


                                        11
circumstances, an out-of-court statement that is made by a sexual assault victim

who is under fourteen years old and that describes the alleged offense is not

inadmissible based on the hearsay rule if, among other conditions, the ―trial court

finds, in a hearing conducted outside the presence of the jury, that the statement

is reliable based on the time, content, and circumstances of the statement.‖ Id.

art. 38.072, §§ 1(1), 2(a)(1), (b)(2).

      We agree with the State, however, that appellant forfeited this complaint.

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for

the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d

235, 238–39 (Tex. Crim. App. 2009). Further, the trial court must have ruled on

the request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court‘s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

A reviewing court should not address the merits of an issue that has not been

preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.

2009).

      Various Texas courts, including our own, have held that a complaint

regarding the lack of a reliability hearing under article 38.072 is forfeited if it is not

raised at trial and if there is no objection to the outcry testimony. See Laredo v.

State, 194 S.W.3d 637, 640–41 (Tex. App.—Houston [14th Dist.] 2006, pet.


                                           12
ref‘d); Cates v. State, 72 S.W.3d 681, 698 (Tex. App.—Tyler 2001, no pet.); State

v. Kaiser, 822 S.W.2d 697, 702 (Tex. App.—Fort Worth 1991, pet. ref‘d).

Accordingly, we hold that appellant forfeited his article 38.072 complaint by not

raising the issue or objecting to Moore‘s testimony. See Tex. R. App. P. 33.1(a).

We overrule his third point.

      In appellant‘s fourth point, he contends that the trial court erred by allowing

testimony regarding his 1987 felony conviction for car theft. During appellant‘s

testimony, his counsel asked him whether he had been previously convicted of

car theft, and appellant admitted that he had.9 When the State asked him about

the theft, appellant admitted that he had been sentenced to four years‘

confinement for committing it. Appellant did not object to the State‘s questions

about the theft.

      On appeal, appellant argues that his conviction was too remote to be

admitted. He relies on rule of evidence 609(b), which states,

      Evidence of a conviction . . . is not admissible if a period of more
      than ten years has elapsed since the date of the conviction or of the
      release of the witness from the confinement imposed for that
      conviction, whichever is the later date, unless the court determines,
      in the interests of justice, that the probative value of the conviction
      supported by specific facts and circumstances substantially
      outweighs its prejudicial effect.

Tex. R. Evid. 609(b). However, like appellant‘s article 38.072 complaint, his rule

609(b) point required an objection at trial to be preserved for our review.

      9
       Appellant concedes in his brief that his counsel ―elicited testimony‖ about
the car theft.


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See Tex. R. App. P. 33.1(a); Layton, 280 S.W.3d at 238–39; Heidelberg v. State,

112 S.W.3d 658, 664 (Tex. App.—Houston [1st Dist.] 2003), aff'd, 144 S.W.3d

535 (Tex. Crim. App. 2004); see also Mendez, 138 S.W.3d at 342 (―Except for

complaints involving systemic (or absolute) requirements, or rights that are

waivable only . . . , all other complaints, whether constitutional, statutory, or

otherwise, are forfeited by failure to comply with Rule 33.1(a).‖) (emphasis

added).

         Because appellant elicited evidence about his theft conviction and did not

object when the State asked him about the conviction, we hold that he forfeited

his ability to complain about the evidence on appeal. We overrule his fourth

point.

                                    Conclusion

         Having overruled all of appellant‘s points, we affirm the trial court‘s

judgments.


                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 28, 2011




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