Opinion issued August 20, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-17-00763-CR
                            ———————————
                       JOSEPH PRESTIANO, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 119th District Court
                          Tom Green County, Texas
                      Trial Court Case No. B-16-0472-SA


     OPINION CONCURRING IN PART AND DISSENTING IN PART

      I join the opinion and judgment of the panel on rehearing except with respect

to (1) the majority’s arguments and conclusions on Prestiano’s evidentiary

objections to hearsay and bolstering, as to which I concur only in the judgment, and

(2) the majority’s ruling remanding this case for a new punishment hearing, from
which I respectfully dissent. I write separately on the evidentiary issues because I

believe the majority’s holding that Exhibit 6—a drawing of sex toys made by the

child complainant during play therapy—is inadmissible is directly contrary to and

undermines well-established law concerning the admissibility of out-of-court

statements made by child sexual abuse victims during therapy as relevant substantive

evidence.   Thus the majority’s holding can have a pernicious effect on the

prosecution of sex crimes with children if relied upon as authority in subsequent

cases. I also write separately on the issue of remand of the reformed judgment for a

new punishment hearing under the statutory law applicable to this case as inefficient

and wasteful of litigant and judicial resources.

                                        Discussion

I.    Evidentiary Rulings

      In issues two, three, and four, Prestiano argues that Exhibit 6—a drawing of

sex toys used with the child—was inadmissible under Texas Rules of Evidence 801

and 802, prohibiting bolstering and hearsay. He further argues that Exhibit 6 was

not admissible as an exception to the prohibition against hearsay under Rule 803(3)

as a statement of a then-existing mental or emotional condition when made and that

no predicate was laid for its admission as a statement made for medical diagnosis or

treatment under Rule 803(4). I disagree with all of these arguments. I would hold

that Exhibit 6 was not inadmissible bolstering or hearsay. Rather, it was properly


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admitted under both Rule 803(3) and Rule 803(4) as relevant substantive evidence

pertinent both to show the child victim’s state of mind and emotions caused by the

sexual abuse she had experienced and as a statement made in the course of treatment

for her fears and anxiety through play therapy.

      A.      Applicable Law

      Hearsay, or an out-of-court statement offered for the truth of the matter

asserted, is, as the majority states, generally inadmissible unless a statute, the rules

of evidence, or other rules prescribed under statutory authority provide otherwise.

See TEX. R. EVID. 801, 802; Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App.

2011).     An exception to the general rule exists for statements expressing the

declarant’s “then-existing state of mind” or “emotional, sensory, or physical

condition,” but the exception does not apply to “a statement of memory or belief to

prove the fact remembered or believed.” TEX. R. EVID. 803(3); compare Martinez

v. State, 17 S.W.3d 677, 688 (Tex. Crim App. 2000) (en banc) (declarant’s out-of-

court statement that she was afraid of defendant was admissible under state-of-mind

exception), with Gibbs v. State, 819 S.W.2d 821, 837 (Tex. Crim. App. 1991)

(declarant’s out-of-court statement that was nothing more than statement of memory

to prove fact remembered was not admissible under state-of-mind exception).

Another exception to the hearsay rule applies to statements that are “made for—and

[are] reasonably pertinent to—medical diagnosis or treatment” and that


                                           3
“describe[] . . . past or present symptoms or sensations; their inception; or their

general cause.” TEX. R. EVID. 803(4); see Taylor v. State, 268 S.W.3d 571, 588–90

(Tex. Crim. App. 2008) (if child-declarant sexual assault victim can and does believe

that her statement to mental-health professional will facilitate her diagnosis or

treatment, statement is admissible under exception to hearsay rule for statement

made for purposes of medical diagnosis or treatment, whether or not mental-health

professional is, strictly speaking, member of medical profession; however, record

must reflect that truth-telling was vital component of particular course of therapy or

treatment and that child-declarant was aware of this).

      “Bolstering” is “any evidence the sole purpose of which is to convince the

factfinder that a particular witness or source of evidence is worthy of credit, without

substantively contributing ‘to make the existence of [a] fact that is of consequence

to the determination of the action more or less probable than it would be without the

evidence.’” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (en

banc). “Accordingly, evidence that corroborates another witness’ story or enhances

inferences to be drawn from another source of evidence, in the sense that it has an

incrementally further tendency to establish a fact of consequence, should not be

considered ‘bolstering.’” Id. at 820 (holding that expert testimony describing

behavioral characteristics typically exhibited by child victims of sexual abuse and




                                          4
behavior observed in complaining witness was admissible as relevant substantive

evidence under Texas Rules of Evidence 401 and 402).

      B.     Background

      I agree with the majority’s statement of the record with respect to the child’s

testimony that Prestiano showed her the sex toys and inserted them into her vagina;

that she independently recalled the green one on the stand; that the actual vibrators

were admitted into evidence without objection, as was a photograph of them; and

that the child recognized both vibrators when she was shown the photograph. The

child also identified the drawing depicting two vibrators, one of which was green, as

a drawing that she made in therapy. However, the State did not introduce the

drawing into evidence during her testimony. Instead, the State called her therapist,

Vickie Purdy, to the stand and qualified her to testify as to the child’s state of mind

and emotional state during therapy.

      Purdy identified the drawing and explained play therapy, in which the child

was “learning how to express her feelings,” including her fears, by using books, talk

therapy, and “frequently expressive arts,” including drawing pictures and playing

with dolls. Purdy testified that, as part of her therapy, the child “would draw on

occasion.”

      The State asked Purdy if she could identify the drawing, and she testified that

the child “wanted to show me some toys that had been used with her.” At this point,


                                           5
defense counsel objected that Purdy’s testimony was hearsay and “improper

bolstering,” and the trial court sustained the objection as to hearsay.

      In response to questioning by the State, Purdy then identified Exhibit 6 as a

drawing made by the child in her presence on a certain date, and she went on to

similarly identify Exhibits 7 through 10 as drawings made by the child and Exhibit

11 as the child’s handwriting, all of which were made during the same therapy

session on the same date as Exhibit 6, which Purdy knew, in part, by her own

handwritten dates on the exhibits. The State asked, “And do all of those drawings

and the writing, the exhibits, have to do with [the child’s] then existing state of mind

and emotional condition?” and Purdy answered, “They do.” The State then offered

into evidence Exhibits 6 through 11.

      Defense counsel objected to all of the exhibits as bolstering, stating, “It’s

allowing the child witness to testify again through her counselor, and I would object

to it.” The trial court overruled this objection and admitted the exhibits.

      The State then tendered each of the exhibits to Purdy to explain what each

item showed “in the course of your therapy with [the child].” With respect to Exhibit

6, Purdy explained once again that the child said that “she wanted to draw pictures

of some toys that were used.” Defense counsel objected again, stating that both the

drawing and Purdy’s testimony had “nothing to do with state of mind. It’s just

restating what she’s alleged had happened.” The prosecutor rejoined, “State’s


                                           6
position is that it has everything to do with her state of mind. That’s why she was in

there [therapy] in the first place. It’s what she has had to work through from that

moment to now.” The trial court overruled the objection, and the State then asked

Purdy to explain what each of the drawings showed about what had happened to the

child that she was working through in therapy. Purdy’s testimony concluded with

her response to questioning about what the child was working through in her writing

in Exhibit 11. Purdy testified, “At the conclusion of the session, I asked, ‘How do

you feel about getting all that out today?’ and she wrote, ‘good and bad.’” Defense

counsel did not make any other hearsay or bolstering objections, and the State passed

the witness.

      The defense then cross-examined Purdy about the child’s fear expressed in

therapy and its cause. Purdy testified that it was “due to being powerless and feeling

unprotected and unsafe,” but that “[the child] did make some improvement in terms

of anxiety, stress, and a shifting of emotions and a recognition of where the

responsibility lies.” She then explained, on redirect examination by the State, that a

child’s fear changes when the child discloses abuse. There is fear initially that the

child “might not be believed or that something bad, a bad consequence might occur.

There’s some relief at telling those that are in charge of her, that love her [and]

respond.”

      On appeal, Prestiano argues that Exhibit 6 was inadmissible as bolstering and


                                          7
hearsay that was not an expression of the child’s mental or emotional condition and

that this exhibit lacked the proper predicate to be admissible as a statement made for

medical diagnosis or treatment. He also argues his trial counsel’s representation was

constitutionally ineffective because counsel failed to raise a hearsay objection to

Exhibits 7 through 11. I disagree.

      C.     Analysis

      As the majority states, whether “bolstering” remains a valid objection is in

doubt. See Rivas v. State, 275 S.W.3d 880, 886–87 (Tex. Crim. App. 2009). In

Rivas, the Court of Criminal Appeals observed that the law of “bolstering” existed

before the Texas Rules of Evidence were adopted and, as a term, “failed to survive

the adoption of the Rules.” Id. at 886. Even if valid, a bolstering objection might

not preserve error as to hearsay, as bolstering is an inherently ambiguous objection

with roots in multiple evidentiary rules, including the hearsay rule. Id.; see also

Williams v. State, 927 S.W.2d 752, 763 (Tex. App.—El Paso 1996, writ ref’d)

(“bolstering” objection did not preserve contention that videotape was not

admissible under hearsay exclusion for prior consistent statements offered to rebut

charge of recent fabrication or improper influence or motive).

      In this case, however, there can be no doubt, under Court of Criminal Appeals

authority, that Exhibit 6 was not mere bolstering but was admissible evidence. See

Cohn, 849 S.W.2d at 819–20. In Cohn, the court defined bolstering as “any evidence


                                          8
the sole purpose of which is to convince the factfinder that a particular witness or

source of evidence is worthy of credit, without substantively contributing ‘to make

the existence of [a] fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence.’” Id. (citing Texas

Rule of Criminal Evidence 401, a predecessor to current Rule 401). Here, it is clear

that Exhibit 6 did not have the sole purpose of convincing the factfinder that the

child was worthy of credit, but rather, was intended to make the existence of facts of

consequence to the determination of Prestiano’s guilt more probable than it would

have been without the evidence. See id. First, the drawing of the sex toys the child

made during play therapy corroborated her story and reflected that her fear and

anxiety were caused by the sexual abuse and her memories of it. See id. And second,

it “enhance[d] inferences to be drawn from [other] source[s] of evidence,” including

the child’s other drawings, testimony as to what had happened to her, and

identification of both the sex toys and the photograph of them introduced into

evidence during her testimony. See id. at 820. Thus, it had “an incrementally further

tendency to establish a fact of consequence,” and, therefore, under established law,

“should not be consider ‘bolstering’” but admissible relevant substantive evidence

of the sexual abuse the child suffered. See id. at 820; see also TEX. R. EVID. 401

(defining relevant evidence), 402 (addressing admissibility of relevant evidence).




                                          9
      This case is on all fours with Cohn. Accordingly, I would hold that Prestiano’s

bolstering objection, if valid, was unavailing.

      Assuming with the majority, however, and contrary to the record, that

Prestiano’s objection that the drawing in Exhibit 6 and Purdy’s testimony about that

drawing had “nothing to do with state of mind” preserved a hearsay complaint and

that Prestiano’s additional complaint, raised for the first time on appeal, that the State

failed to establish a predicate to the introduction of the evidence as a statement made

for medical diagnosis or treatment under Rule 803(4) is properly before us, it is clear

that both of these objections also fail.

      In support of his hearsay objection to Exhibit 6, Prestiano argues on appeal

that the drawing did not show the child’s state of mind but was instead “a statement

of memory or belief to prove the fact remembered or believed,” which is an

exception to the state-of-mind exception to the hearsay rule under Rule 803(3). The

majority agrees. But this argument is contrary to both the record and the law. I

would hold that, assuming Prestiano’s hearsay objection to Exhibit 6 was preserved,

Exhibit 6 was admissible under the plain language of Rule 803(3) and (4), as well as

under Rules 401 and 402 as substantive evidence that had a tendency to make both

the facts of the child’s sexual abuse and its effect upon her more probable than it

would be without the evidence and that was of consequence in determining the

action. Accordingly, I would hold that the trial court’s ruling admitting Exhibit 6


                                           10
was well within its discretion and was not error. See Gonzalez v. State, 544 S.W.3d

363, 370 (Tex. Crim. App. 2018) (trial court abuses its discretion if its ruling is

outside zone of reasonable disagreement).

      Rule 803(3) provides, “A statement of the declarant’s then-existing state of

mind (such as motive, intent, or plan) or emotional, sensory, or physical condition

(such as mental feeling, pain, or bodily health)” is not excluded by the hearsay rule.

TEX. R. EVID. 803(3). The record clearly shows that the drawing was made by the

child in therapy because she wanted to show her therapist what she was feeling and

working through during her play therapy session. In other words, the drawing was

offered through the therapist to show the child’s “then existing state of mind” or

emotional condition at the time of therapy designed to help her “work through” her

emotions, including anxiety and fear, and to determine their cause. The drawing

thus made more probable the truth of the cause of that anxiety and fear, namely the

effect of the child’s memory of specific acts of abuse on her mental state that, given

her age, required play therapy for her to be able to report to someone she trusted and

who would respond so that she might overcome her fear. Witness the child’s

response when the therapist asked how she felt about the drawings she had made—




                                         11
“good and bad”—and the therapist’s testimony that it is through such expression that

a child begins to heal from a mental or emotional injury.1

      The drawing in Exhibit 6 was also admissible under Rule 803(4), as it

evidences the child’s symptoms and sensations at the time of therapy and at their

inception, which symptoms and sensations were caused by the sexual abuse itself

and her memory of it, including Prestiano’s use of sex toys with her.2 See TEX. R.

EVID. 803(4) (statement made for medical diagnosis or treatment describing “past or

present symptoms or sensations; their inception; or their general cause” is not

excluded as hearsay). Prestiano argues for the first time on appeal that the drawing

was not properly admitted because the State failed to establish a predicate to its




1
      I note that Prestiano made no challenge to the scientific validity of play therapy or
      to Purdy’s credentials or the reliability of her testimony. And he made no objection
      to the admission of the other drawings and the child’s statement of her feelings after
      expressing her fears through her drawings that she felt both “good and bad” for
      having told someone what was on her mind.
2
      The majority opinion states that it is not necessary for the Court to decide whether
      Exhibit 6 is admissible under Rule 803(4) because the State did not urge this
      exception at trial. But we must uphold an evidentiary ruling if it was correct on any
      theory of law applicable to the case, even if the prevailing party did not present that
      theory to the trial court. See Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App.
      2016); see also Amador v. State, 376 S.W.3d 339, 343 n.4 (Tex. App.—Houston
      [14th Dist.] 2012, pet. ref’d) (proponent of hearsay testimony not required to
      specifically state exception to hearsay rule for overruling of hearsay objection to be
      affirmed based on such exception); George E. Dix & John M. Schmolesky, 43B
      Texas Practice: Criminal Practice and Procedure § 56:135, 461 (3rd ed. 2011)
      (“[A]n appellee [be it the State or the defendant below] has no obligation to raise a
      contention in the trial court in order to ‘preserve’ that contention in some sense for
      consideration on appeal.”).

                                            12
introduction under either Rule 803(3), to show the child’s state of mind, or under

Rule 803(4), as a statement made for medical treatment through play therapy. Even

if his defense counsel had objected on that basis at trial—he did not—that objection

would have failed based on the record and the law.3

      Exhibit 6 was admitted along with Exhibits 7 through 11 (to which no

objection was made when offered), after the State had established the predicate to

its admissibility under both Rule 803(3), to show the child’s state of mind, and Rule

803(4), as a statement pertinent to her treatment for fear and anxiety. The record

plainly establishes that Purdy was a licensed therapist with appropriate credentials

and many years of experience in play therapy; that the statement was made for

treatment of the child’s fears and anxieties caused by the sexual abuse she had

suffered, and that the child knew that; and that the drawing was pertinent not only to

her treatment but to the proof of the cause of her fears and anxieties, namely sexual

abuse. See, e.g., Lamper v. State, No. 07-18-00035-CR, 2018 WL 4056064, at *5

(Tex. App.—Amarillo Aug. 24, 2018, no pet.) (mem. op., not designated for


3
      Defense counsel’s objection that the drawing had “nothing to do with state of mind”
      did not preserve his argument that the State failed to lay the proper predicate for its
      introduction of the drawing. See, e.g., In re A.B., 133 S.W.3d 869, 875 (Tex. App.—
      Dallas 2004, no pet.) (appellant’s hearsay objection did not preserve argument that
      proper predicate had not been laid to impeach witness); see also Ferris v. State, No.
      01-09-00676-CR, 2011 WL 664016, at *4 (Tex. App.—Houston [1st Dist.] Feb. 17,
      2011, no pet.) (mem. op., not designated for publication) (“Because appellant failed
      to make his insufficient predicate argument to the trial court, he has not preserved
      the issue for our review.”).

                                            13
publication) (admission under Rule 803(4) of drawings by child victim depicting her

sexual abuse was not abuse of discretion where sponsoring witness testified child

made drawings on her own initiative during therapy sessions and drawing can be

beneficial during treatment of such young child). And this evidence corroborated

the child’s own previous testimony.

      Under Taylor, if a child-declarant sexual assault victim can and does believe

that her statement to a professional mental-health counselor will facilitate her

diagnosis or treatment, the statement is admissible under Rule 803(4) for purposes

of medical diagnosis or treatment. 268 S.W.3d at 587–89. In this regard, the Court

of Criminal Appeals acknowledged the “almost universal tendency of courts” to

recognize that “even children of a sufficient age or apparent maturity” will

understand that veracity is in their best interest, and thus the courts require evidence

that negates such an awareness. Id. at 589. However, in the mental health context,

“this tacit presumption is far less compelling” and “not always so readily apparent,”

and may even not be accurate. Id. at 590. Thus, the record must reflect that truth-

telling was a vital component of the particular course of therapy or treatment and

that the child-declarant was aware that this was case. Id. at 589–90.

      Here, the record reflects that the child knew that she was in therapy so that the

therapist could help her work through her fears, and she knew that she was there so

that she would feel better after expressing what she was thinking about and feeling.


                                          14
Hence, her voluntary drawing of the sex toys as something she wanted to tell the

therapist—a drawing she could not have made had she never seen the toys. And

hence the child’s written response, in Exhibit 11, to Purdy’s question at the end of

her therapy session asking “how she felt about getting all that our today,” that she

felt both “good and bad.” There is nothing to indicate that Exhibit 6 was not of sex

toys the child had seen (and indeed her earlier identification of them during her own

testimony showed that she had seen and could identify them) or that the memory of

them was not bothering her, and there was everything to indicate her truthfulness in

recounting her feelings to the therapist, knowing that “getting it all out” was

designed to determine the cause of her fear and anxiety to help her get better. I

would hold that Exhibit 6, a statement made in the course of the child’s therapy for

her fears and anxiety, was properly predicated and thus admissible under Rule

803(4).

      I cannot agree with the majority’s decision to categorize the admission of

Exhibit 6 as erroneous—albeit harmless error—because I believe that the majority’s

ruling undermines sound jurisprudence in the area of hearsay, particularly in

designating as hearsay a drawing made in play therapy by a child victim of sexual

abuse designed to draw out the state of mind of the child and to treat her fear and

anxiety caused by the acts of the defendant as the child remembers them. This is

evidence that goes directly to the effect of the abuse on the child’s mental and


                                         15
emotional condition that makes both the occurrence of the acts depicted and the harm

they caused to the child more likely to be true.

      I do, however, agree with the majority that, had there had been any error in

the admission of Exhibit 6, any such error was harmless beyond a reasonable doubt.

See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1990) (any error in

admitting hearsay was “harmless in light of other properly admitted evidence

proving the same fact”); Lamerand v. State, 540 S.W.3d 252, 257 (Tex. App.—

Houston [1st Dist.] 2018, pet. ref’d) (any error in admission of medical report

containing statements made by child to doctor was harmless given that child herself

testified without objection about sexual abuse and identified defendant as

perpetrator).

      I would overrule Prestiano’s bolstering and hearsay objections. Because the

majority overrules these objections on different grounds, I concur in this part of the

judgment. I agree with the majority that Prestiano’s trial counsel did not commit

ineffective assistance of counsel by failing to object to Exhibits 7 through 11 as

hearsay.

II.   Remand for New Punishment Hearing

      I agree with the majority’s opinion and ruling that the evidence was

insufficient to support Prestiano’s conviction on the third count of the indictment,

aggravated sexual assault of a child under Penal Code subsection 22.021(a)(1)(B)(ii)


                                          16
by causing his penis to penetrate the child’s mouth. I also agree that the evidence

was sufficient to support Prestiano’s conviction for the necessarily lesser-included

offense of aggravated sexual assault of a child by contact of the defendant’s penis

with the child’s mouth under subsection 22.021(a)(1)(B)(v). Accordingly, I join the

judgment of the panel insofar as it reforms the judgment of the trial court on this

issue.

         However, the panel remands the case for a new punishment hearing on the

ground that subsection 22.021(a)(1)(B)(v) is a lesser-included offense of

subsection 22.021(a)(1)(B)(ii), even though the two offenses are in exactly the same

subsection, down to the third value; the range of punishment is the same; the

evidence is exactly the same except for the insufficiently proved penetration of the

child’s mouth during commission of the offense; and contact with the mouth of a

child is a necessary element of the proof of penetration—so much so that the lesser-

included offense is subsumed in the greater and disappears if the greater is proved.

See Aekins v. State, 447 S.W.3d 270, 280, 283 (Tex. Crim. App. 2014).

         I find remand of this case for a new punishment hearing to be futile, time-

consuming, expensive, and contrary to the purpose and spirit of the rules of

procedure. See TEX. CODE CRIM. PROC. ANN.           ART.   1.03(3) (Code of Criminal

Procedure seeks “[t]o insure a trial with as little delay as is consistent with the ends

of justice”). The majority, however, believes itself bound to follow precedent I find


                                          17
distinguishable to a conclusion I believe incompatible with the spirit and purpose of

the rules of procedure.

      The majority relies for its decision to remand for a new punishment hearing

on Lee v. State, 537 S.W.3d 924, 927 (Tex. Crim. App. 2017) (“When an appellate

court finds the evidence insufficient to establish an element of the charged offense,

but the jury necessarily found the defendant guilty of a lesser offense for which the

evidence is sufficient, the appellate court must reform the judgment to reflect the

lesser-included offense and remand for a new punishment hearing.”), and Flores v.

State, 888 S.W.2d 187, 193 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)

(holding that, while it was reasonable to expect that trial court would assess same

punishment for lesser-included offense, remand for new punishment hearing was

required because court of appeals could not say so with certainty). However, both

of these cases are distinguishable.

      In Lee, the defendant was convicted of continuous sexual abuse of a child,

which was reformed to the lesser-included offense of aggravated sexual assault of a

child. 537 S.W.3d at 925–26. In that case, the evidence showed that the defendant

had committed aggravated sexual assault of the child twice—once in Texas and once

in New Jersey. Id. at 925. The issue was whether this evidence was sufficient to

prove continuous sexual abuse of a child under Texas Penal Code section 21.02(b).

Id. at 926. The Court of Criminal Appeals held that it was not—that continuous


                                         18
sexual abuse of a child under Texas law requires the commission of two or more acts

in violation of the statute within the state. See id. at 926–27. It concluded that the

evidence was sufficient only to prove the lesser-included offense of aggravated

sexual assault of a child under Penal Code section 22.021, which requires only one

act of aggravated sexual assault in Texas. Id. at 926. Thus, the court reformed the

judgment to convict the defendant only of the lesser-included aggravated sexual

assault offense, and it remanded the case for a new punishment hearing. See id. at

927.

       The facts of Lee are materially different from the facts in this case in that, in

Lee, punishment under Texas law had to be determined on the basis of only one act

of sexual assault of a child (the other act not being a violation of Texas law, but of

New Jersey law), and the statutes under which the greater and the lesser-included

offenses were punishable were different statutes with materially different elements,

including multiple acts versus one act, each requiring different proof. Here, there

was only one act and no different evidence required beyond proof of penetration

during that act. The only question here was whether the act was punishable under

Penal Code subsection 22.021(a)(1)(B)(ii) or (v).

       Flores was not a sex offense case. See 888 S.W.2d at 189. It involved a

conviction for theft under Penal Code section 31.03 that was reformed to a

conviction for the lesser-included offense of unauthorized use of a vehicle under


                                          19
Penal Code section 31.07. See id. at 192–93. Both section 31.07 and the subsection

of section 31.03 under which the defendant was convicted were third-degree felonies

with the same range of punishment. See TEX. PENAL CODE §§ 31.03, .07. However,

theft under section 31.03 comprises numerous offenses, including unlawful

appropriation of a vehicle with the intent to deprive the owner of it, while

unauthorized use of a vehicle under section 31.07 prohibits only the intentional and

knowing operation of a vehicle without the owner’s consent. Compare TEX. PENAL

CODE § 31.03 (a)–(j) (providing three types of “unlawful possession of property”

with numerous potentially distinguishing features set out in different subsections,

defining different unavailing defenses, and prescribing multiple levels of

punishment), with § 31.07 (requiring proof only that actor “intentionally or

knowingly operate[d] another’s boat, airplane, or motor-propelled vehicle without

the effective consent of the owner”). Again, the greater offense and the lesser-

included offense were proscribed under different statutes with materially different

levels of scienter and proof, were provable with different evidence, and could have

resulted in different punishments.

      Here, unlike in either Lee or Flores, both the greater offense of penetration of

the mouth of a child by the defendant’s sexual organ and the lesser-included offense

of contact of the mouth of a child by the defendant’s sexual organ are punishable as

aggravated sexual assault of a child under the same subsection of Penal Code section


                                         20
22.021 down to the third level, namely under subsections 22.021(a)(1)(B)(ii) and

22.021(a)(1)(B)(v); the proof of both is proof of the exact same act except that the

greater offense includes proof of penetration; and both offenses are subject to the

exact same range of punishment without any lesser degree of culpability or intent on

the part of the actor.

      In short, proof of penetration necessarily includes proof of contact, which is

the only distinguishing feature in every case, and it can lead to no different

punishment—so much so that the Court of Criminal Appeals has held that a contact

allegation is not only factually subsumed by the act of penetration, so that sexual

contact necessarily stands in the relationship of a lesser offense to the greater offense

of penetration, but also that the relation between the offenses is so great that, if the

greater is proved, the lesser disappears as a separate offense. Aekins, 447 S.W.3d

at 280, 283; see also Maldonado v. State, 461 S.W.3d 144, 149 (Tex. Crim. App.

2015) (noting that “penetration cannot physically occur in the absence of contact”).

In other words, the lesser offense is legally subsumed by the greater.

      Remanding this case for a new punishment hearing before the same judge who

assessed punishment in the first trial with the same evidence where the lesser offense

is not only subsumed by the greater but disappears upon a finding of the greater is

an illiberal reading of the rules of criminal procedure, with attendant additional

expense and delay both to the defendant and to the State; hence it is an exercise in


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futility, and contrary to the purpose and spirit of the procedural rules. See TEX. CODE

CRIM. PROC. ANN. ART. 1.03(3).

      Accordingly, I dissent from the panel opinion and reformed judgment insofar

as the panel remands the case to the trial court for a new punishment hearing.

                                        Conclusion

      I respectfully concur in the judgment insofar as it overrules the defendant’s

evidentiary objections. I dissent from the judgment solely insofar as the panel

remands this case for a second punishment hearing. I would overrule the defendant’s

objections to the trial court’s evidentiary rulings on different grounds; I would

reform the judgment to reflect the defendant’s conviction on the third count for the

lesser-included offense of aggravated sexual assault of a child by contact; and I

would affirm the judgment of the trial court as reformed.



                                               Evelyn V. Keyes
                                               Justice




Panel consists of Justices Keyes, Lloyd, and Goodman.

Keyes, J., concurring in part and dissenting in part.

Publish. TEX. R. APP. P. 47.2(b).



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