Opinion filed October 28, 2010




                                                          In The


    Eleventh Court of Appeals
                                                       __________

                                                No. 11-08-00268-CR
                                                    __________

                            CALVIN EUGENE WILLIAMS, Appellant
                                          V.
                                STATE OF TEXAS, Appellee


                                    On Appeal from the 35th District Court
                                            Brown County, Texas
                                       Trial Court Cause No. CR19236


                                     MEMORANDUM OPINION

         The jury convicted Calvin Eugene Williams of aggravated sexual assault of a child and
sexual assault of a child and assessed his punishment at confinement for life in the Institutional
Division of the Texas Department of Criminal Justice for both offenses. The trial court ordered
that appellant’s sentences to run consecutively.                       Appellant challenges his convictions and
sentences in five issues. We affirm.
                                                    Background Facts
         Appellant was charged in Count I in the indictment with intentionally or knowingly
penetrating the sexual organ of his stepdaughter R.B. with his finger at a time when she was
younger than fourteen years of age.1 He was charged in Count II of the indictment with

         1
            The indictment identifies the sexual assault victim through the use of a pseudonym as authorized by TEX. CODE CRIM.
PROC. ANN. art. 57.02 (Vernon Supp. 2010). In light of the victim’s status as a minor, we will identify her by the initials of the
fictitious name used in the indictment to identify her.
intentionally or knowingly penetrating the sexual organ of R.B. with his sexual organ at a time
when she was younger than seventeen years of age.
       R.B. was fifteen years old at the time of trial. R.B. testified that she, her mother, and her
brother moved from the Dallas-Fort Worth area to the Bangs area in August 2006. Appellant
joined the family in late September 2006. The family initially lived with relatives until they
acquired a trailer house on West Street in late October 2006.
       R.B. testified that appellant began “messing with” her approximately three weeks after
they moved into the trailer house on West Street. She described his conduct in this regard as
follows:
             At nighttime, [appellant] used to come in my room and he would lay down
       beside me while I’m trying to sleep and he will start off as rubbing my boobs.
       And I will kind of nudge or kick him off of me, or whatever. And then, like, he
       will stop for awhile and then come back and do the same thing. And I will nudge
       him off again and he will stop for a little bit and then he will start messing with
       my boobs again. And I just give in and he will start going down to my vagina and
       start using his fingers and fingering me.

R.B. testified that appellant engaged in this conduct five to ten times. R.B. further testified that
appellant subsequently began having sexual intercourse with her after they moved to a house at
Lake Brownwood. She estimated that appellant had intercourse with her four or five times.
       In September 2007, R.B. learned that she was pregnant. When confronted about the
pregnancy by her mother, R.B. disclosed that appellant had been having intercourse with her. A
subsequent medical examination revealed that the fetus was not viable.           After a physician
performed a procedure to remove the fetus, the fetus was transported to the University of North
Texas Center for Human Identification in Fort Worth for DNA testing. Farah Plopper, a forensic
analyst specializing in DNA identification at the Center, testified that her comparison of the
DNA removed from the fetus to DNA samples provided by R.B. and appellant revealed that
appellant could not be excluded as the biological father of the fetus. She further testified that
99.9995% of the general male population would be excluded as the biological father of the fetus.
                                    Sufficiency of the Evidence
       In his fourth issue, appellant challenges the factually sufficiency of the evidence
supporting his conviction for aggravated sexual assault of a child as alleged in the first count of
the indictment. We note at the outset of our analysis that the Texas Court of Criminal Appeals
recently held in Brooks v. State, No. PD-0210-09, 2010 WL 3894613, *1 (Tex. Crim. App.

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Oct. 6, 2010), that there is “no meaningful distinction between the Jackson v. Virginia2 legal-
sufficiency standard and the Clewis3 factual-sufficiency standard” and 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. All other cases to the contrary, including Clewis,
are overruled.” Id. at *8, *14 (footnotes added). Accordingly, a challenge to the factually
sufficiency of the evidence is no longer viable. In the interest of justice, we will review
appellant’s evidentiary challenge under the legal sufficiency standard.
       In order to determine if the evidence is legally sufficient, the appellate court reviews all
of the evidence in the light most favorable to the verdict and determines whether the jury was
rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Brooks, 2010 WL 3894613, at *5. In conducting this review, we are required to
defer to the jury’s role as the sole judge of witness credibility and the weight their testimony is to
be afforded. Brooks, 2020 WL 3894613, at *5.
       Appellant directs his evidentiary challenge to the evidence establishing that R.B. was
younger than fourteen at the time of the alleged digital penetration. R.B. testified that her date of
birth was January 28, 1993. Accordingly, January 28, 2007, was the determinative date for
resolving appellant’s evidentiary challenge because R.B. turned fourteen on that date.
       As noted previously, R.B. testified that appellant began digitally penetrating her vagina
about three weeks after she and her family moved into the trailer house located on West Street in
Bangs. R.B. testified on direct examination that she and her family moved into the trailer house
on West Street in October 2006. R.B.’s mother testified that R.B. and her family moved into the
trailer house on West Street in late October 2006. She recalled the date based upon her son’s
birthday being on October 25th. She testified that the family considered moving into the trailer
house on West Street to be a birthday present for her son. She also recalled the date based upon
the date that she received her paycheck.
       At one point during the prosecutor’s direct examination, he asked R.B. how old she was
when the digital penetration occurred. She initially responded that she was fourteen at the time.
However, she corrected her answer to thirteen when reminded of the year that the act occurred.


       2
        Jackson v. Virginia, 443 U.S. 307 (1979).
       3
        Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
                                                           3
On cross-examination, R.B. testified that she may have lived with her aunt for up to four months
prior to moving into the trailer house on West Street rather than the two months that she
previously testified, thereby suggesting that the family moved into the trailer house after October
2006. On another occasion during cross-examination, R.B. testified that they lived in the trailer
house for a couple of months prior to moving to the house at Lake Brownwood. Relying upon
R.B.’s mother’s testimony that the family moved into the house at Lake Brownwood in July
2007, appellant asserts that R.B.’s testimony that the family lived in the trailer house for a couple
of months prior to moving into the house at Lake Brownwood is evidence that the family moved
into the trailer house after January 28, 2007. On redirect examination, however, R.B. testified
that they moved into the trailer house prior to Thanksgiving in 2006.
       Appellant contends that a rational jury could not have found that the digital penetration
occurred prior to January 28, 2007, based on the evidence offered at trial. We disagree. R.B.
testified that the conduct began three weeks after the family moved into the trailer house on West
Street. Accordingly, the critical event in the timeline is the date that the family moved into the
trailer house. Both R.B. and her mother testified that the family moved into the trailer house in
October 2006. In this regard, R.B.’s mother based her testimony about the move-in date on two
events of significance, including her son’s birthday occurring in October. Accordingly, there is
evidence supporting the jury’s verdict. To the extent that R.B. may have given contradictory
testimony, it was within the jury’s province to resolve any inconsistencies in the evidence. We
are mindful in this regard of the difficulties often experienced by children with remembering
dates. We conclude that a rational jury could have determined beyond a reasonable doubt that
the digital penetration occurred prior to R.B.’s fourteenth birthday. Appellant’s fourth issue is
overruled.
                                Constitutionality of Section 8.04(a)
       Appellant asserts in his first issue that a jury instruction setting out the contents of TEX.
PENAL CODE ANN. § 8.04(a) (Vernon 2003) violates the Fifth and Fourteenth Amendments of the
United States Constitution and Article I, section 19 of the Texas Constitution. Section 8.04(a)
provides that “[v]oluntary intoxication does not constitute a defense to the commission of
crime.” At the close of the guilt/innocence phase of trial, the State requested an instruction in the
court’s charge setting out this provision. The State based its request on comments made by
defense counsel during opening statements to the effect that “[appellant] sometimes drinks,
sometimes to the point he passes out.”
                                                 4
       Appellant asserts on appeal that this provision violates the due process provisions of the
U.S. and Texas Constitutions because it creates a “mandatory presumption” relating to the
State’s burden of proof on an element of the offense. He contends that the statute alleviates the
State’s burden to prove the “intentionally or knowingly” element of the charged offenses.
Appellant argues that an instruction based on the statute “requires the jury upon proof of a
predicate fact (intoxication), to find an element (intentionally or knowingly) was proved. . . . If
the jury found intoxication, the jury is required to find the defendant intended the act. This
effectively eliminates the State from having any burden in proving the act was intentional or
knowing.”
       The Texas Court of Criminal Appeals recently addressed “the mandatory presumption”
contention asserted by appellant in Sakil v. State, 287 S.W.3d 23, 28 (Tex. Crim. App. 2009).
The court of appeals in Sakil had ruled that Section 8.04(a) “effectively creates a presumption
that an intoxicated person has the requisite mental state, thus relieving the State of its burden of
proving all elements of the offense beyond a reasonable doubt.” Sakil v. State, 281 S.W.3d 87,
91 (Tex. App.—El Paso 2008), rev’d, 287 S.W.3d at 28. The Court of Criminal Appeals stated
as follows in overruling this holding:
                Finally, we note that we disagree with the court of appeals’s assessment of
       voluntary-intoxication instructions in general. The court stated that a Section
       8.04(a) instruction “effectively creates a presumption that an intoxicated person
       has the requisite mental state,” and thus relieves “the State of its burden of
       proving all elements of the offense beyond a reasonable doubt.” The court
       believed that the instruction “placed a burden on . . . Appellant to prove that he
       was not voluntarily intoxicated.” We do not understand this reading of a
       voluntary-intoxication instruction. If anything, a voluntary-intoxication
       instruction acts to reaffirm the mental-state requirements, not delete them.
       “[E]vidence of [an] appellant’s intoxication, if any, does not negate the elements
       of intent or knowledge”; and, therefore, when the evidence suggests that a
       defendant acted under the influence of a substance, the instruction operates to
       inform the jury that the elements of the offense, including the requisite mental
       state, are not affected by any evidence of intoxication.

Sakil, 287 S.W.3d at 28 (citations omitted). We defer to the Court of Criminal Appeals’s holding
rejecting appellant’s mandatory presumption argument. In doing so, we note our agreement with
the court’s analysis. Appellant’s first issue is overruled.
                                Notice of Enhancement Allegations
       In his second issue, appellant contends that the State did not provide him with notice that
it sought to enhance Count I of the indictment under the provisions of TEX. PENAL CODE ANN.
                                                  5
§ 12.42 (Vernon Supp. 2010) as a repeat and habitual felony offender. He bases this contention
on the text of the indictment. The indictment provides in relevant part as follows:
       THE STATE OF TEXAS VS.                CALVIN EUGENE WILLIAMS
                                             DOB: 10/19/1969

       Charge:        CT. I AGGRAVATED SEXUAL ASSAULT OF A CHILD
                      Penal Code §22.021 - 1st Degree Felony

                      CT. II SEXUAL ASSAULT OF A CHILD
                      Penal Code §22.011 - 2nd Degree Felony

                      REPEAT OFFENDER/HABITUAL OFFENDER - Penal Code § 12.42

       IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

               THE GRAND JURY, for the County of Brown, State of Texas, duly
               selected, empaneled, sworn, charged, and organized as such at the
               November Term, 2007, of the 35th Judicial District Court for such
               County, upon their oaths present in and to said Court at said term that

       COUNT I

       Calvin Eugene Williams, hereinafter styled Defendant, on or about the 1st day of
       August, 2006, and before the presentment of this indictment, in the County and
       State aforesaid, did and there intentionally or knowingly cause the penetration of
       the sexual organ of Rachel Benning (pseudonym), a child who was then and there
       younger than 14 years of age and not the spouse of the defendant, by defendant’s
       finger.

       COUNT II

       And further that on or about the 1st day of June, 2007, in the County and State
       aforesaid, the defendant, did then and there intentionally or knowingly cause the
       penetration of the sexual organ of Rachel Benning (pseudonym), a child who was
       then and there younger than 17 years of age and not the spouse of the defendant,
       by defendant’s sexual organ.

       ENHANCEMENT PARAGRAPH ONE:

       And it is further presented in and to said Court that, prior to the commission of the
       aforesaid offense (hereafter styled the primary offense), on the 4th day of March,
       1988, in cause number F88-93152-U in the 291st Judicial District Court of Dallas
       County, Texas, the defendant was convicted of the felony offense of Burglary of a
       Habitation.



                                                6
          ENHANCEMENT PARAGRAPH TWO:

          And it is further presented in and to said Court that, prior to the commission of the
          primary offense, and after the conviction in cause number F88-93152-U was final,
          the defendant committed the felony offense of Unauthorized Use of a Motor
          Vehicle, and was convicted on the 19th day of December, 1991, in cause number
          0914877 in the 147th Judicial District Court of Travis County, Texas;

                Against the Peace and Dignity of the State.

Appellant directs our attention to the two enhancement paragraphs.                                   He contends that the
singular form of the terms “aforesaid offense” and “primary offense” in the two enhancement
paragraphs indicates that the State only intended to enhance the applicable punishment range for
one count in the indictment. He further asserts that the enhancement allegations apply to
Count II rather than Count I because Count II is the “aforesaid offense” that immediately
precedes the enhancement paragraphs in the indictment. We disagree.
          A defendant is entitled to notice of a prior conviction that the State intends to use for
enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). Although proper
notice of intent must be timely, it need not be pleaded in the indictment to be sufficient, so long
as it is pleaded “in some form” prior to trial. Id. at 34.4 It is unnecessary to allege prior
convictions for enhancement of punishment with the same particularity that is required in
charging the primary offense. See Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986).
          The terms “aforesaid offense” and “primary offense” contained in the two enhancement
paragraphs address the sequencing requirement of Section 12.42 that a defendant “has previously
been finally convicted” of a prior offense before the commission of the alleged new offense.
Section 12.42(d). Thus, these terms address the issue of when the prior convictions became
final. Appellant had notice that both prior convictions became final before the new offenses
alleged in Counts I and II.
          The internal references in the enhancement paragraphs to a single primary offense were
no doubt inartful. However, it is readily apparent that the error, if any, was clerical in nature.
This is evidenced by the effect of the enhancement paragraphs on each of the two counts.
Count I alleged a first degree felony that would ordinarily be punishable by a term of
confinement for life or for any term of not more than 99 years or less than 5 years. TEX. PENAL

          4
          Other than citing general announcements at pretrial hearings that repeat offender and habitual offender allegations
were included in the indictment, the State solely relies on the text of the indictment as evidence of its compliance with the notice
requirement.
                                                                 7
CODE ANN. §§ 12.32(a), 22.021(e) (Vernon Supp. 2010). Count II alleged a second degree
felony that would ordinarily be punishable by a term of confinement of not more than 20 years or
less than 2 years. TEX. PENAL CODE ANN. §§ 12.33(a), 22.011(f) (Vernon Supp. 2010). Under
Section 12.42(d), the punishment for Count I would be enhanced to a term of confinement for
life or for any term of not more than 99 years or less than 25 years upon a showing that appellant
had been finally convicted of two prior felony offenses. The same enhanced punishment range
of a term of confinement for life or for any term of not more than 99 years or less than 25 years
would also apply under Section 12.42(d) for Count II even though Count II alleged a second
degree felony. Common sense dictates that the State would seek to punish the first degree felony
conduct alleged in Count I on the same basis as the second degree felony conduct alleged in
Count II. The Court of Criminal Appeals concluded in Cooper v. State, 500 S.W.2d 837, 839
(Tex. Crim. App. 1973), that an “obvious clerical error” involving an enhancement paragraph
referring to the wrong paragraph when it alleged the sequence of prior felony convictions did not
render the enhancement allegation invalid. This reasoning is applicable to the enhancement
allegations in this appeal. We conclude that the enhancement paragraphs’ language referring
only to a single primary offense was an obvious clerical error that could not have misled
appellant into believing the State did not seek sentence enhancement in the event of his
conviction for aggravated sexual assault under Count I.
       Moreover, the application of the enhancement allegations to Count I only served to
increase the minimum term of confinement from five years to twenty-five years. As noted
previously, appellant received a life sentence on Count I. Despite appellant’s allegations that he
might have pursued a different trial strategy had he known that the State was seeking a minimum
sentence of twenty-five years on Count I or that the jury might have reached a different result
had the minimum sentence been five years, we do not find that appellant suffered harm from the
trial court’s alleged error in light of the fact that he received a maximum sentence that was not
increased by the enhancement allegations. Appellant’s second issue is overruled.
                  Instruction on Voluntary Intoxication to Mitigate Punishment
       Appellant asserts in his third issue that the trial court erred in refusing his requested
instruction under TEX. PENAL CODE ANN. § 8.04(b), (c) (Vernon 2003) that temporary insanity
caused by intoxication may be considered in mitigation of punishment. In order to be entitled to
a jury instruction on voluntary intoxication for purposes of mitigation of punishment, the
evidence must show that the intoxication rendered the defendant temporarily insane in that (1) he
                                                8
did not know his conduct was wrong or (2) he was incapable of conforming his conduct to the
law. Cordova v. State, 733 S.W.2d 175, 190 (Tex. Crim. App. 1987); Shelton v. State, 41 S.W.3d
208, 213 (Tex. App.—Austin 2001, pet. ref’d). Evidence that the defendant may have been
intoxicated at the time of the offense does not automatically entitle him to a mitigation
instruction at punishment. Miniel v. State, 831 S.W.2d 310, 320 (Tex. Crim. App. 1992); Shelton,
41 S.W.3d at 213.
       Appellant attempts to satisfy the required evidentiary showing of temporary insanity
caused by voluntary intoxication by pointing out that he cooperated with law enforcement
officials during their investigation. He contends that he would not have cooperated had he
known the extent of his conduct. He additionally relies on R.B.’s testimony that he did not say
anything when he came into her room and that he did not respond to her effort to nudge him
away as evidence that he did not know what he was doing.
       The trial court did not err in determining that there was no evidence of temporary insanity
caused by voluntary intoxication.       Appellant presented no evidence that, by reason of
intoxication, he did not know that his conduct was wrong or that he was incapable of conforming
his conduct to the law. To the contrary, he asserted in his testimony during the punishment
phase that he did not engage in the alleged conduct. Appellant’s third issue is overruled.
                    Evidence of Prior Sexual Assault Examination of Victim
       In his fifth issue, appellant asserts that the trial court erred in denying his request to
present testimony during the guilt/innocence phase from a physician that performed a pelvic
examination of R.B. during the previous year based upon an allegation that appellant had
sexually assaulted her at that time. Appellant asserts that a sheriff’s deputy “opened the door” to
evidence concerning the previous allegation by his testimony that appellant told him during an
initial encounter that “he had been accused of this a year before by, I think, a grandmother.
Appellant sought to elicit testimony from the physician that his examination of R.B. did not
reveal evidence of current sexual activity. The physician noted in his examination that R.B.
“admitted to having had intercourse” on one occasion approximately a year earlier with her
twelve-year-old boyfriend. The trial court made the following ruling in denying appellant’s
request:
       I find that under the totality of the circumstances that what has been presented
       outside the presence and hearing of the jury, that the probative value is
       outweighed by the prejudicial nature, that this would delve into the previous
       sexual conduct of the victim in the case in violation of the rape shield law. And it
                                                9
       involves more speculation than not, given the type of evidence that has been
       presented.

              So, the probative value, I find, is weaker and the prejudicial nature greater.
       I’m not going to allow this testimony. So, the State’s objections are sustained.

       We review a trial court’s decision regarding the admissibility of evidence under an abuse
of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).
Appellate courts will uphold a trial court’s admissibility decision when that decision is within the
zone of reasonable disagreement because trial courts are in the best position to decide questions
of admissibility. Id. An appellate court may not reverse a trial court’s decision regarding the
admissibility of evidence solely because the appellate court disagrees with the decision. Id. A
trial court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
       Appellant argues that the trial court should have admitted the physician’s testimony under
the rule of optional completeness. TEX. R. EVID. 107 permits the introduction of previously
inadmissible evidence when that evidence is necessary to fully explain a matter that has been
raised by the adverse party. This rule is limited to instances where a party introduces partial
evidence of an act, declaration, conversation, writing, or recorded statement. The rule was
adopted to prevent evidence from being taken out of context and misleading the jury.
Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.—San Antonio 2001, no pet.). He additionally
asserts that the trial court misapplied TEX. R. EVID. 403 by determining that the probative value
of the physician’s testimony was outweighed by its prejudicial nature.
       Appellant does not address the trial court’s reference to the rape shield law to exclude the
physician’s testimony. TEX. R. EVID. 412 excludes all evidence in a criminal case pertaining to
the victim’s sexual history save for five exceptions: (1) the evidence necessary to rebut or
explain scientific or medical evidence by the State; (2) the evidence of past sexual behavior with
the accused offered to show consent; (3) the evidence that relates to motive or bias of the victim;
(4) the evidence admissible under TEX. R. EVID. 609; or (5) the evidence that is constitutionally
required to be admitted. Rule 412 applied to the physician’s testimony because his examination
of R.B. for evidence of sexual activity delved into her sexual history.
       Rule 107 is a rule of admissibility while Rule 412 is a rule of exclusion. Accordingly, the
trial court was required to strike a balance between two conflicting rules of evidence in deciding
whether to allow the physician’s testimony. We conclude that the trial court did not abuse its
                                                10
discretion by determining that the evidence should be excluded under Rule 412. The protections
afforded by Rule 412 are significant. Rule 412 contains five exceptions; however, the rule of
optional completeness is not listed as one of the exceptions. Appellant’s fifth issue is overruled.
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


October 28, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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