                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-14-00139-CR
                                  02-14-00140-CR


SAMUEL HENRY                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
             TRIAL COURT NOS. F-2013-1050-C, F-2013-1051-C

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                        MEMORANDUM OPINION 1

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      Appellant Samuel Henry appeals from his convictions for aggravated

sexual assault of a child and indecency with a child. In two issues, Henry argues

that the evidence was insufficient to support his convictions and that extraneous-

act evidence was improperly admitted at the guilt-innocence phase of trial.

Because the evidence was sufficient and because the extraneous-act evidence

      1
       See Tex. R. App. P. 47.4.
was properly admitted into evidence, we overrule Henry’s issues and affirm the

trial court’s judgments.

                               I. BACKGROUND

      In October 2010, Pam and Gina went on a week-long cruise, leaving

Pam’s daughter Cathy, who was six years old, in the care of Gina’s brother who

lived with Gina. 2 Henry was Gina’s friend and was a frequent visitor to her home.

In fact, he visited so often that many believed Henry lived with Gina. While Pam

and Gina were gone on the cruise, Cathy was watching television on a bed with

Henry when she turned and saw that Henry had pulled down his pants to the

bottom of his thighs and was touching his penis.       Cathy left the room.     In

February 2012, Cathy told her stepmother about the incident who, in turn, told

Pam. Pam did not report Henry to the police because she did not “want to

automatically accuse [Henry],” whom she trusted.

      Gina’s niece, Renee, spent a lot of time at Gina’s home and considered

Henry to be her uncle. Renee would spend the night at Gina’s home and would

sleep on a mattress in the living room. On September 29, 2012 when Renee

was between twelve and thirteen years old, she stayed at Gina’s home. She

woke up to find Henry on top of her. Her underwear had been removed and

Henry was having sex with her, with his penis inside her vagina. Henry kept

“looking behind him, looking if anybody was coming.” Renee pretended to be

      2
      To protect the identities of the child complainants in this case, we use
pseudonyms to identify the complainants and their relatives.


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asleep during the entire incident. The next morning, Renee told Gina’s son, who

was the same age as Renee, that Henry had “raped” her but he did not believe

her. Renee told no one else until February 2013, when she told a counselor at

her school. The counselor reported Renee’s outcry to the authorities.

      Once Henry’s sexual assault of Renee came to light, police investigators

discovered Henry’s prior exposure to Cathy.      In March 2013, Pam gave a

statement about Henry’s actions with her daughter Cathy. In May 2013, a grand

jury indicted Henry with (1) the aggravated sexual assault of Renee by causing

Renee’s sexual organ to contact Henry’s sexual organ and (2) indecency with

Cathy by exposing his genitals. See Tex. Penal Code Ann. § 21.11 (West 2011),

§ 22.021 (West Supp. 2014).      Both indictments contained an enhancement

paragraph alleging that Henry previously had been convicted of delivery of more

than one but less than four grams of cocaine in a drug-free zone. See Tex.

Health & Safety Code Ann. § 481.112 (West 2010), § 481.134 (West Supp.

2014); Tex. Penal Code Ann. § 12.42 (West Supp. 2014).

      At the guilt-innocence phase of trial, evidence was admitted that in 2003

when Henry was twenty-four, he began a consensual sexual relationship with

Rachel, a fourteen-your-old girl. When Rachel was fifteen, she gave birth to

Henry’s daughter. Wendy also testified that around 2001 to 2004 when she was

approximately eleven to thirteen years old, she frequently would spend the night

at the home of her cousin, Gina. Henry, who also was a frequent visitor at Gina’s




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home, inappropriately rubbed on Wendy’s thighs and chest on two occasions

while she pretended to sleep. On the second occasion, Wendy left the room.

      The jury found Henry guilty of aggravated sexual assault and indecency

with a child and assessed his sentence at sixty years’ and twelve years’

confinement, respectively. The trial court ordered the sentences to be served

consecutively. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2014).

Henry appeals and argues that the evidence is legally insufficient to support his

convictions and that the trial court erred by allowing Rachel and Wendy to testify.

                      II. SUFFICIENCY OF THE EVIDENCE

      In his second issue, Henry argues that the evidence was legally insufficient

to support his convictions. Other than a recitation of the applicable standard of

review, the entirety of Henry’s appellate argument is that “in this case, the

evidence is legally insufficient to support the verdict.”

      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 verdict 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); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). Regarding aggravated sexual assault, Renee testified to

each element of the offense. She stated that when she was twelve or thirteen

years old, she woke up with Henry on top of her, her panties having been taken

off, with Henry putting his penis inside her vagina. Regarding indecency, Cathy


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testified that when she was six years old, Henry pulled his pants down such that

Cathy could see his genitals.     Henry does not specify how this evidence is

insufficient to support his convictions and, indeed, recognizes that it was within

the jury’s province to determine the credibility of Renee and Cathy. See Thomas

v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). We conclude the evidence

was sufficient to support both convictions. See Tex. Code Crim. Proc. Ann. art.

38.07 (West Supp. 2014); Revels v. State, 334 S.W.3d 46, 53 (Tex. App.—Dallas

2008, no pet.); Navarro v. State, 241 S.W.3d 77, 80–81 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). We overrule issue two.

                      III. EXTRANEOUS-ACT EVIDENCE

      In his first issue, Henry argues that the trial court erred by admitting

Rachel’s and Wendy’s testimony regarding extraneous acts, which affected his

substantial rights. See Tex. R. App. P. 44.2(b); Tex. R. Evid. 403. Specifically,

Henry asserts that “[t]he use of the testimony regarding extraneous acts tipped

the scales for the [S]tate and the evidence was no longer the testimony of the

two complainants in the instant case.”

      At trial, Henry objected to Rachel’s and Wendy’s extraneous-act testimony

and argued that although relevant, it was unfairly prejudicial.    The trial court

overruled the objections, and we assume the trial court conducted the

appropriate balancing test under Rule 403. See Parmer v. State, 38 S.W.3d 661,

670 (Tex. App.—Austin 2000, pet. ref’d). Under the Rule 403 balancing test, the

court necessarily determined that the probative value of the extraneous acts


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substantially outweighed their prejudicial effect by considering (1) how

compellingly the evidence served to make a fact of consequence more or less

probable, (2) the potential the extraneous acts had to impress the jury in an

irrational and indelible way, (3) the time the State spent in developing the

evidence, and (4) the force of the State’s need for the evidence to prove a fact of

consequence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

       Henry’s actions with Rachel and Wendy were strikingly similar to the

charged offenses and served as additional evidence of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident;

thus, tending to make a fact of consequence more probable. The State did not

spend an inordinate amount of time developing Rachel’s and Wendy’s

testimonies. Although the extraneous-act evidence could have impressed the

jury in an indelible way, the State had a need to develop this evidence because

there were no eyewitnesses and no physical evidence to corroborate Cathy’s and

Renee’s outcries against Henry.     We conclude the trial court did not err by

admitting the testimonies of Rachel and Wendy. See Blackwell v. State, 193

S.W.3d 1, 15 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Jones v. State,

119 S.W.3d 412, 423 (Tex. App.—Fort Worth 2003, no pet.). We overrule issue

one.




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                              IV. CONCLUSION

      Having overruled Henry’s two issues, we affirm the trial court’s judgments.

See Tex. R. App. 43.2(a).


                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: January 29, 2015




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