Opinion filed October 31, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-17-00305-CR
                                     __________

                   AMBER LYNN HAUGEN, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 70th District Court
                              Ector County, Texas
                      Trial Court Cause No. A-16-1450-CR



                      MEMORANDUM OPINION
      In the indictment upon which Amber Lynn Haugen was ultimately tried, the
State alleged that she “did then and there intentionally or knowingly cause
[Appellant’s] mouth or tongue to contact the female sexual organ of ‘BH,’ a child
who was then and there younger than 6 years of age and not the spouse of
[Appellant].” B.H. was Appellant’s two-month-old daughter. The jury found
Appellant guilty of the offense of aggravated sexual assault of a child as alleged in
the indictment, and it assessed her punishment at confinement for life and a $10,000
fine. See TEX. PENAL CODE ANN. § 22.021 (West 2019). The trial court sentenced
Appellant to confinement for life without the possibility of parole,1 and it also
imposed a fine of $10,000. We affirm.
       In the first of six issues on appeal, Appellant argues that the trial court erred
when, during the punishment phase of the trial, it admitted evidence that B.H. had
suffered an anal tear. In her second issue on appeal, Appellant complains about the
trial court’s admission, during the punishment phase of the trial, of evidence related
to the termination of Appellant’s parental rights to two children that were not the
subject of this case. Appellant argues in her third issue on appeal that the trial court
erred when, in the absence of a proper predicate, it admitted various sexually explicit
photographs. In her fourth issue on appeal, Appellant asserts that the trial court erred
when it refused to charge the jury on the lesser included offense of indecency with
a child by contact. Appellant takes the position in her fifth issue on appeal that the
trial court erred when it denied her motion for a directed verdict. Finally, in her sixth
issue on appeal, Appellant maintains that the evidence is legally insufficient to
support her conviction.
       A challenge to the trial court’s denial of a motion for a directed verdict is
treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937
S.W.2d 479, 482 (Tex. Crim. App. 1996). Because both issues invite an examination
of the evidence, we will address Issues Five and Six together.
       We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.


       1
         See TEX. GOV’T CODE ANN. § 508.145(a) (West Supp. 2018) (providing that inmates serving a
sentence for certain offenses are ineligible for release on parole).

                                                2
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the
weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard
accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
      The investigation that culminated in the charges made the basis of this case
began when Appellant made a complaint to personnel with the Odessa Police
Department. Corporal Joseph Dominguez—then Officer Dominguez—with the
Odessa Police Department, went to Appellant’s apartment in response to Appellant’s
complaint. Corporal Dominguez testified that Appellant complained to him about
text messages and photo messages that were sent to her either by her ex-boyfriend,
Kelly Shambaugh, or by Edward Rawlins. Appellant allowed Corporal Dominguez
to take pictures of the texts and photographs that appeared on her phone.
      Mario Baeza, an investigator with the Odessa Police Department, specialized
in “child crime.” He contacted Appellant in October 2015 in connection with the
                                          3
complaint that she had made. Investigator Baeza’s investigation of Appellant’s
complaint led him to investigate charges of child pornography and aggravated sexual
assault of a child.
      Joshua Pirtle testified that he was a special agent with the Federal Bureau of
Investigation. Special Agent Pirtle’s primary role with the FBI was to investigate
violent crimes against children. He became involved in this case after either
someone with the Odessa Police Department or someone in the district attorney’s
office contacted him.
      Special Agent Pirtle interviewed Appellant. The trial court admitted an audio
recording of that interview into evidence without objection. In that interview,
Appellant essentially admitted the State’s allegations. Appellant admitted that she
took pictures of herself “licking [B.H.] down below.” Agent Pirtle asked Appellant
if that meant “licking her vagina”; Appellant replied, “Yes.”
      Special Agent Pirtle also testified that Appellant told him how she sexually
abused her daughter by “using her fingers to digitally penetrate, or manipulate, the
infant’s vagina. And, also, using her tongue to manipulate the vagina in an effort to
perform oral sex.” B.H. was just over two months old when Appellant sexually
assaulted her.
      The evidence also contains nude photographs that Appellant had taken of B.H.
In at least one of those photographs, Appellant had spread open B.H.’s labia. State’s
Exhibits Nos. 27 and 28 included compilations of photographs, some of which
depicted sexual acts.       State’s Exhibits Nos. 29 through 35 are individual
photographs, most of which showed sexual acts. Although only a portion of a face
or no face at all is shown in the photographs that depict an adult performing sexual
acts on an infant, there is evidence that the physical characteristics of the adult in the
photographs match Appellant’s physical features. Appellant identified her own
female sexual organ and buttocks that appear in State’s Exhibit No. 27.
                                            4
         The evidence showed that Appellant sent the photographs and videos to her
boyfriend at the time, Shambaugh, and that he shared them with other men. Special
Agent Pirtle testified that Appellant told him that she did what she did because she
loved Shambaugh and wanted to please him.
         Under the evidence that we have just discussed, a rational trier of fact could
have found beyond a reasonable doubt that Appellant, intentionally or knowingly,
caused her mouth or tongue to contact the female sexual organ of B.H., a child who
was, at the time of the offense, younger than six years of age and who was not
Appellant’s spouse. The evidence is sufficient to support the verdict of the jury. We
overrule Appellant’s fifth and sixth issues on appeal.
         In her first issue, Appellant argues that the trial court erred when it admitted
evidence, during the punishment phase of the trial, that B.H. had suffered an anal
tear. Dr. Cindy Burnette, a Sexual Assault Nurse Examiner with a Doctorate in
nursing, testified that, on October 19, 2015, she conducted a SANE exam on B.H.
During that examination, Dr. Burnette found, among other things, a “fairly decent
size” tear in B.H.’s anus. Dr. Burnette also found redness on B.H.’s female sexual
organ.
         In this court, Appellant argues that she objected to the admission of the anal
tear evidence under Rule 402 and Rule 403 of the Texas Rules of Evidence and under
Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure.2 However,
the only objection that Appellant presented to the trial court during the trial was one
based upon relevance under Article 37.07, section 3(a)(1). This claim of relevance
was based upon Appellant’s persistent position that there was no evidence to connect



         2
         All references to Rule 402 in this opinion are to TEX. R. EVID. 402. All references to Rule 403 in
this opinion are to TEX. R. EVID. 403. All references to Article 37.07 or Article 37.07, section 3(a)(1) in
this opinion are to TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018).

                                                    5
her with the anal tear and that it was not therefore relevant. Appellant did not, during
trial, lodge either a Rule 402 or a Rule 403 objection.
        In her brief to this court, Appellant claims that, before the SANE testimony
began, trial counsel asked the trial court to hear Dr. Burnette’s testimony outside the
presence of the jury so that the trial court could “make the determination of whether
this evidence was irrelevant, unreliable, and unfairly prejudicial.” The record does
not support that statement. To the contrary, in line with Appellant’s other arguments
in the trial court on this issue, the record reflects that trial counsel asked the trial
court to determine “relevance and sufficiency of the evidence to go to the jury,” not
to determine “unfair prejudice.” Appellant has not preserved error, if any, under
Rule 403.3 TEX. R. APP. P. 33.1. Even if Appellant were to argue that the matter is
covered by her motion in limine, motions in limine do not preserve error in matters
related to the admissibility of evidence. Martinez v. State, 98 S.W.3d 189, 193 (Tex.
Crim. App. 2003). Appellant did not re-urge the matters covered in the motion.
Appellant has waived her Rule 403 objection, and we will limit our review to
Appellant’s objection under Article 37.07, section 3(a)(1).
        We review a trial court’s decision to admit extraneous offenses at the
punishment phase of trial under an abuse of discretion standard. Ellison v. State, 86
S.W.3d 226, 227 (Tex. Crim. App. 2002); Bain v. State, 115 S.W.3d 47, 50 (Tex.
App.—Texarkana 2003, pet. ref’d). A trial court abuses its discretion when its
decision to admit evidence lies outside the zone of reasonable disagreement.
Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).




        3
        Although Appellant did not preserve a Rule 402 objection, we will consider it insofar as it might
inform our decision as to admissibility under Article 37.07.

                                                    6
      Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure
provides as follows:
            Regardless of the plea and whether the punishment be assessed
      by the judge or the jury, evidence may be offered by the state and the
      defendant as to any matter the court deems relevant to sentencing,
      including but not limited to the prior criminal record of the defendant,
      his general reputation, his character, an opinion regarding his character,
      the circumstances of the offense for which he is being tried, and,
      notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
      evidence of an extraneous crime or bad act that is shown beyond a
      reasonable doubt by evidence to have been committed by the defendant
      or for which he could be held criminally responsible, regardless of
      whether he has previously been charged with or finally convicted of the
      crime or act. . . .
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018). The Code of
Criminal Procedure does not define the term “relevant”; however, the Texas Court
of Criminal Appeals has stated that Rule 401 may be helpful to determine a question
of relevance under Article 37.07, section 3(a)(1). Ellison v. State, 201 S.W.3d 714,
718 (Tex. Crim. App. 2006). Pursuant to Rule 401, evidence is relevant when it
tends to make a fact more probable or less probable than it would be in the absence
of the evidence and when the fact is of consequence “in determining the action.”
TEX. R. EVID. 401.
      “The test for relevancy is much broader during the punishment phase, because
it allows a jury to consider more evidence in exercising its discretion to assess
punishment within the appropriate range.” Bain, 115 S.W.3d at 50. The purpose of
a punishment proceeding is not to prove guilt but, instead, to allow a factfinder to
assess punishment in line with the objectives of the Texas Penal Code. Id.; see
Franks v. State, No. 01-07-00253-CR, 2008 WL 4427665, at *3 (Tex. App.—
Houston [1st Dist.] Oct. 2, 2008, no pet.) (mem. op., not designated for publication)
(medical evidence of prior injuries to an older child by mother’s boyfriend

                                          7
admissible against mother in punishment phase of her trial for injury to her younger
child). When a court determines relevance in the punishment phase of a trial, the
important question is whether the evidence “is helpful to the jury in determining the
appropriate sentence for a particular defendant in a particular case.” Rogers v. State,
991 S.W.2d 263, 265 (Tex. Crim. App. 1999).
      As far as Appellant’s argument touches upon a complaint that there is nothing
to connect her to the anal tear, the burden of proof set out in Article 37.07 refers to
Appellant’s involvement in the act itself rather than the elements of a crime
necessary for a finding of guilt. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim.
App. 2005). In this case, the jury had just found Appellant guilty of licking her two-
month-old daughter’s vagina.      The jury had also heard testimony about how
Appellant had used her fingers to spread her baby’s labia apart, how she had taken
sexually explicit photographs and made videos of the abuse of and with her baby,
and how she had sent the photographs and videos to her boyfriend.
      Based upon the evidence that was before the trial court when it admitted the
testimony about B.H.’s anal tear, the trial court could have easily determined that a
jury could find beyond a reasonable doubt that the anal tear was attributable to
Appellant. The anal tear evidence was relevant and was the type of evidence that
would be helpful to the jury in determining the appropriate sentence for this
Appellant in this particular case. The trial court did not abuse its discretion when it
admitted the anal tear evidence. We overrule Appellant’s first issue on appeal.
      In her second issue on appeal, Appellant argues that the trial court erred when
it admitted evidence during the punishment phase that two of Appellant’s other
children had been in the foster care program in Wisconsin and that her parental rights
to those two children had been terminated before B.H. was born.               As with
Appellant’s first issue on appeal, before the Wisconsin evidence was offered,
Appellant objected on the basis of relevance under Article 37.07. The trial court
                                           8
gave Appellant a running objection on “that.” Appellant did not offer a Rule 403
objection when the State offered the evidence. Appellant has preserved nothing for
review on her Rule 403 complaint. TEX. R. APP. P. 33.1. As we did in our
consideration of Appellant’s first issue on appeal, we will limit our review to
Appellant’s objection under Article 37.07, section 3(a)(1).
      As we have said, when we determine relevance in the punishment phase of a
trial, the important question is whether the evidence “is helpful to the jury in
determining the appropriate sentence for a particular defendant in a particular case.”
Rogers, 991 S.W.2d at 265. Again, our review is for an abuse of discretion. Bain,
115 S.W.3d at 50.
      Dutch Leydel testified that he is employed in the Child Welfare Department
of Racine County Human Services in Racine, Wisconsin. As a part of his duties,
Leydel was assigned to Appellant’s case in August 2012. At that time, Appellant’s
only child had been removed from her custody; she had indicated that someone
needed to take the child, or she would kill him.
      Appellant moved to Racine from another Wisconsin county after she had met
a registered sex offender online; she moved in with him in Racine. Leydel testified
that Appellant saw no problem with her living with a registered sex offender. Three
of her four relationships were with sex offenders.
      Leydel also testified that Appellant had another child during the time that she
was receiving services from the Child Welfare Department in Racine. This baby girl
had been exposed to chlamydia prenatally and was removed from Appellant’s
custody. Ultimately, Appellant’s parental rights were terminated as to both the
children.
      Debbie Jowett is the adoptive mother of Appellant’s first two children. Jowett
testified as to the difficulties that she and her husband had encountered as foster and
adoptive parents of Appellant’s two older children. She testified that, when the older
                                          9
child, C.J., was placed with them, they could not touch him or comfort him; he was
not eating baby food and was not “babbling” as most babies do; and they had to
employ touch therapy with him “for a couple of years.” Also, C.J. ate the wood on
his crib and ate sheetrock that he dug out of the walls.
      Jowett also testified about the younger child, S.J. S.J. has “some of the genetic
things,” but, Jowett testified, she is doing well otherwise. As Leydel testified, S.J.
was exposed to chlamydia prenatally, was removed, and has never been with
Appellant.
      Appellant maintains that the trial court abused its discretion when it admitted
the Wisconsin testimony because there is no evidence that any of the Wisconsin
history involved sexual assault, indecency, or wrongful touching. She further asserts
that the trial court abused its discretion because none of the evidence involved
criminal charges; because termination is not a crime and should not be used to
increase punishment; and because the burden of proof in a termination proceeding
is by clear and convincing evidence rather than beyond a reasonable doubt and,
therefore, cannot satisfy the burden-of-proof standards of Article 37.07. None of
those objections were presented to the trial court, and we need not consider them.
TEX. R. APP. P. 33.1.
      To decide whether the Wisconsin evidence was relevant under Article 37.07,
we must ask whether the evidence would be helpful to the jury in determining the
appropriate sentence for this Appellant in this particular case. Rogers, 991 S.W.2d
at 265. We hold that it would be and that the trial court did not abuse its discretion.
We overrule Appellant’s second issue on appeal.
      Appellant argues in her third issue that the trial court erred when it admitted
certain sexually explicit photographs when the State had not first established a
proper predicate. Appellant complains that she is not properly identified as the
person who is shown in the photographs. As we pointed out earlier in this opinion,
                                          10
State’s Exhibits Nos. 27 and 28 are compilations of photographs, some of which
depict sexual acts but do not show many facial features. Likewise, most of State’s
Exhibits Nos. 29 through 35 depict sexual acts but fail to show complete faces.
However, other evidence shows that the physical features in the photographs
matched Appellant’s features, including a blemish on her skin, matching hair, and
an identical blemish on her breast.       Further, the photographs were found on
Appellant’s phone. Additionally, the characteristics of the apartment in which
Appellant lived and the place depicted in the photographs were similar. Those
similarities between Appellant’s apartment and the one depicted in the photographs
included a mirror, a towel rack, a faucet, a sink, and blankets and covers on a bed.
The evidence shows that the physical characteristics of the adult in the photographs
match the physical features of Appellant’s tongue, nose, face, and skin. Further,
Appellant also identified her own female sexual organ and buttocks in State’s
Exhibit No. 27.
      We hold that the trial court did not abuse its discretion when it admitted
Exhibits Nos. 27, 28, 29, 30, 31, 32, 33, 34, and 35. These photographs were
sufficiently linked to Appellant. All the photos were linked through Appellant’s
physical characteristics and the appearance of Appellant’s residence and items in it.
Furthermore, Appellant specifically identified herself and her female sexual organ
as depicted in Exhibit No. 27. We hold that the State sufficiently established a proper
predicate for the admission of the photographs. We overrule Appellant’s third issue
on appeal.
      In Appellant’s fourth issue on appeal, she proposes that the trial court erred
when it did not instruct the jury on the lesser included offense of indecency with a
child. Courts use a two-pronged test to determine whether a lesser included offense
must be included in the jury charge when requested by a defendant. Bullock v. State,
509 S.W.3d 921, 924 (Tex. Crim. App. 2016). The first prong of the test, whether
                                          11
an offense is a lesser included offense, is a question of law. Id. If it is a lesser
included offense as a matter of law, the court then proceeds to determine whether
some evidence exists in the record that would permit a rational jury to find that, if
the defendant is guilty, she is only guilty of the lesser offense. Id. at 924–25; see
Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007); Rousseau v. State,
855 S.W.2d 666, 673 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446
(Tex. Crim. App. 1981); Torres v. State, 343 S.W.3d 297, 304 (Tex. App.—Eastland
2011, pet. ref’d).
      Indecency with a child by contact is a lesser included offense of aggravated
sexual assault of a child where both offenses are predicated on the same act. Evans v.
State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009). Appellant has satisfied the first
prong of the test.
      We now proceed to the second prong of the test: Is there some evidence in the
record that would permit a rational jury to find that, if Appellant is guilty, she is
guilty only of the lesser offense? Rousseau, 855 S.W.2d at 673; Torres, 343 S.W.3d
at 304. Appellant argues that the record contains some evidence of the lesser
included offense. Otherwise, she argues, the State could not have proved the main
offense. However, that is not the complete test. “Some evidence” is that evidence
that would permit a rational jury to find that, if Appellant is guilty, she is guilty only
of the lesser offense. We have outlined the evidence above and have examined the
entire record. We hold that there is no evidence in the record that would permit a
jury rationally to find that, if Appellant is guilty, she is guilty only of the lesser
included offense. Under this record, the lesser included offense is not a valid and
rational alternative to the charge against Appellant. Hall, 225 S.W.3d at 535–36.
We overrule Appellant’s fourth issue on appeal.




                                           12
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


October 31, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.




        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                     13
