
 





NUMBER 13-06-180-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



JESUS PEREZ SALDAÑA,	Appellant,

v.


THE STATE OF TEXAS,	Appellee.


On appeal from the 357th District Court of Cameron County, Texas.



O P I N I O N


Before Justices Rodriguez, Garza, and Benavides

Opinion by Justice Benavides


	By nine issues, appellant Jesus Perez Saldaña challenges his convictions for one
count of indecency with a child by contact, Tex. Penal Code Ann. § 21.11(a)(1) (Vernon
2003), and two counts of aggravated sexual assault, Tex. Penal Code Ann. § 22.021(a)
(Vernon Supp. 2007).  The trial court sentenced Saldaña to thirty-five years' imprisonment
in the Texas Department of Criminal Justice, Institutional Division, for each count, with the
sentences to run consecutively, for a total of 105 years.  Because we find that the
conviction under Count I of the indictment for indecency with a child by contact violates the
Double Jeopardy Clause of the Fifth Amendment, we vacate the conviction for that count
and reform the trial court's judgment of conviction to reflect our decision.  In all other
respects, we affirm.
I.  Background
	On January 23, 2003, Jesus Perez Saldaña was indicted on two counts of
aggravated sexual assault and two counts of indecency with a child.  The complainants
were two sisters, B.B. and B.A.  Count I of the indictment alleged that Saldaña intentionally
or knowingly engaged in sexual contact with B.B., a child younger than seventeen years
of age and not Saldaña's spouse, by touching her genitals with his finger.  Count II of the
indictment alleged that Saldaña intentionally or knowingly caused the penetration of B.B.'s
sexual organ with his finger.  Count III alleged that Saldaña intentionally or knowingly
engaged in sexual contact with B.B. by touching her anus with his finger or hand.  Finally,
Count IV alleged that Saldaña intentionally or knowingly caused the anus of B.A., a child
younger than fourteen years of age, to contact Saldaña's mouth.  The indictment also
alleged two enhancement counts:  (1) that prior to the commission of the offense, Saldaña
was convicted of the felony offense of burglary of a building; and (2) that prior to the
commission of the offense, Saldaña was convicted of the felony offense of delivery of a
controlled substance.
	The trial court appointed Dan Sanchez to represent Saldaña on March 19, 2003. 
The parties appeared for a pre-trial hearing on July 28, 2003.  During the pre-trial hearing,
Saldaña, through his attorney, asked the court to allow him to personally cross-examine
witnesses if, during trial, he felt that his attorney was not asking the right questions.  The
trial court denied the request. 
 
	After that exchange, at the pre-trial hearing, the State moved to dismiss Count III
of the indictment.  The trial court accepted the dismissal.  Sanchez then informed the trial
court that Saldaña had elected to have the trial court, instead of the jury, assess
punishment.  The parties then selected a jury.  At the beginning of trial the next day, the
arraignment was read by the State, but the content does not appear in the record.  Saldaña
pleaded not guilty, and trial commenced.  
	The two complainants testified at trial.  First, B.B. testified that she was nine years
old at the time of trial and unmarried.  She testified that her mother, Bridget, would leave
B.B. and her sister, B.A., at a babysitter's trailer while she worked.  The babysitter was
identified as Jill Breedlove.  B.B. identified Saldaña as Breedlove's boyfriend who was
occasionally present at Breedlove's trailer when Breedlove babysat.  
	B.B. testified that on occasion, her mother would have to work late and that on those
nights, B.B. and B.A. would stay the night at Breedlove's trailer.  B.B. stated that on one
particular night, she was laying on Breedlove's bed in the trailer when she was approached
from behind by Saldaña.  She testified that it was dark in the room, and she was facing
away from the door to the bedroom.  She testified that she turned around and saw Saldaña
enter the room.  He subsequently laid down on the bed next to her; her back was towards
him.  She said that Saldaña pulled down her panties, touched her from top to bottom of her
"middle part . . . where [she] pee[s] from" with his finger, and then he licked his finger.  She
testified that his finger stayed on the "outside."  She testified that she rolled over, and
Saldaña told her to go back to sleep.  After the incident, she got up from the bed and went
into the living room where Breedlove and her sister were watching television.  She did not
discuss the events with Breedlove.  She was eight years old at the time of the incident. 
She testified that Saldaña never touched her again. 
	B.B. testified that she told B.A. what happened.  She testified that after some time
she told her teacher about the events, but initially she did not specify which teacher.  On
cross-examination, she stated that she told two of her teachers, Mary Martinez and Hermila
Gomez, although she did not recite exactly what she told each of them.
	B.A. also testified.  B.A. stated that she was eight years old at the time of trial and
unmarried.  She also identified Saldaña as Breedlove's boyfriend and that he was present
at Breedlove's trailer while she and her sister were there.  She testified that while at the
trailer, Saldaña would kiss her on the lips and with his tongue.  The State asked her to
identify, on a drawing of the front and back sides of a child's body, where Saldaña had
touched her.  She circled the mouth, vagina, and buttocks.  
	B.A. testified that on one occasion, she was in either the living room or the bedroom
in the trailer when Saldaña touched her.  She testified that he touched her where you "poo
out of."  Immediately thereafter, the State asked whether she "could feel his tongue touch
[her] body?"  She answered, "Yes."  She testified that this occurred more than once. On
one occasion, after touching her, Saldaña presented her with a pocket knife and told her
not to tell anyone what happened.  The State then asked, "And when he touched you, you
[sic] used his tongue?"  She answered, "Yes."
	Mary Anderson, a Harlingen police detective, testified about her investigation into
the allegations against Saldaña and that her investigation was consistent with abuse of the
two children.  After Anderson's testimony, the jury was excused for a break.  Saldaña,
through his counsel, requested that the trial court recall all the witnesses so that he could
ask some questions of his own.  The trial court denied his request. 

	B.B.'s two teachers, Mary Martinez and Hermila Gomez, testified. (1)  Martinez testified
that B.B. asked to speak to her one day at school.  The two went into the hallway, and B.B.
began to tell her "what the babysitter had tried."  Martinez stated that she did not question
B.B. fully to get the whole story.  Rather, Martinez asked B.B. if she would feel comfortable
speaking to Gomez, and she then went and asked Gomez to join them.  She stated that
she felt that Gomez would be better able to handle the situation.  Martinez testified that she
did not stay in the hallway to listen to the entire conversation.  Saldaña's counsel asked her
whether she heard B.B. tell Gomez that Saldaña exposed himself to her.  Martinez testified
that she heard B.B. report to Gomez that "Jesse tried to show me or pull out his private
part."  
	 Hermila Gomez testified that in November 2002, Martinez came to her classroom
and told her that B.B. had reported that a man touched her private parts.  Martinez had
asked Gomez to speak with B.B. because Gomez served as an investigator for Child
Protective Services for approximately ten years.  Specifically, B.B. reported that her
babysitter's boyfriend had touched her.  The State questioned her about the specifics of
the outcry:
	Q.	And what did she say happened?

	A.	She said she was laying down and that this man Jesse had sat by the
edge of the bed and he had pulled her panties down.  

	Q.	And what did she say that he did?

	A.	She said that he had stuck his finger inside her private parts and that
he started licking his finger.

	Q.	Did she tell you anything else?

	A.	She said he had done this about five times and that she was
pretending to be asleep.  So after awhile she just rolled over on her
side and she opened her eyes.  So she said that the man thought she
had woken up and he just told her to go back to sleep.

On cross-examination, Saldaña's counsel clarified that the "five times" had occurred on the
same night.  He also inquired as to whether B.B. reported that Saldaña exposed himself
to her, to which she answered, "No."
	Next, Deyanira Romero, an employee of the Cameron County Children's Advocacy
Center at Maggie's House in San Benito, testified.  Romero stated that she interviewed
B.A. at Maggie's House.  B.A. told her that Saldaña was her babysitter's boyfriend.  She
testified that B.A. reported that Saldaña had "licked her butt."  The State then inquired into
the specifics of the outcry: 
	Q.	Okay.  And when she said licked her butt, was she more specific
about where?
 
	A. 	Part of the questioning is, obviously, to make sure how that
happened; and so, therefore, I asked her if it was over or under her
clothes.  Initially she said it was over her panties.  Because we
needed clarification to find out, because she kept insisting that it was
in her butt, that he licked her in her butt, we wanted more specific
clarification to be able to know that what she was--what she was
saying and how she was saying it.  And so we used various tools
during the interview process.  I did use the diagrams with her.  And
these diagrams are gender appropriate.  We used the female and the
male.  And she still was not clear.  She kept insisting it was over her
panties.  So we also used anatomical dolls as tools for our
interviewing practices.  And so at that time, because she had made
an outcry and she kept insisting that he had licked her in her butt, we
brought out the dolls.  I used the dolls and she demonstrated with the
dolls how this had happened.  And basically, she lowered the panties
of this little doll just a little bit and then showed that her panties were
indeed still on but they were lowered.  And that's how she
demonstrated that Jesse had licked her butt.

	On cross-examination, Romero testified that B.A. did not say that her panties were
lowered until after Romero had left the room to speak with someone and had returned to
resume questioning.   Romero testified that when she left the room, she discussed the
interview with Detective Mary Anderson and a woman from child-care licensing, Miriam
Luna.  After she returned and continued questioning, B.A. finally stated that her panties
had been lowered at the time Saldaña "licked her in her butt."  Saldaña's attorney
suggested, through his questions, that Romero asked B.A. suggestive questions until B.A.
finally stated that her panties were down.  Saldaña's attorney asked whether children had
ever lied to Romano during an interview, and she replied, "Yes." 
	The State rested.  Saldaña's counsel called several witnesses who attempted to
refute the idea that Saldaña was present at Breedlove's trailer during the time period when
the two girls alleged the incidents occurred.  Saldaña did not testify.
	After the close of the evidence, the trial court held a charge conference, at which
Saldaña's attorney lodged several objections.  First, he objected to the inclusion of an
instruction regarding the statute of limitations that also included the two girls' birth dates. 
He argued that by providing the girls' birth dates in the charge, the State was relieved of
proving the girls' ages, which was an element of all the alleged offenses.  The trial court
overruled the objection.  
	Second, Saldaña's attorney reminded the trial court that the State had dismissed
Count III of the indictment.  He objected that the jury charge referenced three counts of the
indictment as Counts I, II, and IV; thus, the jury could speculate about the dismissed count. 
He asked to have the jury charge renumbered and the indictment amended to reflect the
dismissal of Count III of the indictment.  The trial court amended the jury charge so that
Count IV of the indictment became Count III of the jury charge.  The trial court also agreed
to amend the indictment.  Apparently, however, the trial court never manually amended the
indictment.
	The jury found Saldaña guilty on all counts.  Punishment was tried to the court, after
which the trial court sentenced Saldaña to thirty-five years imprisonment for each count,
with the sentences to run consecutively.  This appeal ensued.
II.  Charge Error
	By his first issue, Saldaña complains that the jury charge's preliminary instructions
included the complainants' birth dates, thereby relieving the State of its burden to prove
the complainants' ages, an element of the charged crimes.  See Tex. Penal Code Ann. §§
21.11(a) ("A person commits an offense if, with a child younger than 17 years . . ."),
22.021(a)(2)(B) ("A person commits an offense . . . if . . . the victim is younger than 14
years of age . . . ").  The jury charge provided in the introductory paragraphs an instruction
regarding the statute of limitations, which included the complainants' dates of birth:
	You are instructed that the State is not bound by the specific date alleged in
the indictment.  The date of the offense as alleged is immaterial provided
that the offense was committed prior to the filing of the indictment, in this
case being January 22, 2003, and within the period of limitations, in this case
being ten (10) years from the eighteenth (18th) birthday of the victim of the
offense.  You are further instructed that the birth date of B.B. is September
2, 1993 and the birth date of B.A. is October 5, 1994.

Saldaña objected to the jury charge, but the trial court overruled his objection.
	The State counters that the application paragraphs of the jury charge, the portion
of the charge upon which the jury is authorized to convict, required the State to prove the
complainants' birthdays beyond a reasonable doubt.  For example, the application
paragraph for count II of the indictment stated
	Now if you find from the evidence beyond a reasonable doubt that on or
about the 15th day of April, 2002, in Cameron County, Texas, the Defendant,
JESUS PEREZ SALDAÑA, did then and there intentionally or knowingly
cause the penetration of the female sexual organ of B.B., a child who was
then and there younger than 14 years of age and not the spouse of the
defendant, by the defendant's finger, then you will find the defendant guilty
of Aggravated Sexual Assault of a Child as alleged in Count II of the
indictment and next consider Count III.

Thus, the jury charge did not relieve the State of its burden to prove the complainants'
ages.  Nevertheless, even if it was error to include the dates of birth in the introductory
paragraphs, the State argues that the error was harmless because the State proved the
complainants' birth dates, and Saldaña did not contest the birth dates at trial.
	Complaints of jury charge error are reviewed first for error, and second, for harm to
warrant reversal.  Tex. Code Crim. Proc. Ann. art 36.19 (Vernon 2006); (2) Almanza v. State,
686 S.W.2d 157, 174 (Tex. Crim. App. 1985).  A jury is only authorized to convict based
on the charge's application paragraph.  Glockzin v. State, 220 S.W.3d 140, 150 (Tex.
App.-Waco 2007, pet. ref'd).  As stated above, the application paragraphs did not
reference the instruction on limitations, which included the complainants' birth dates, but
rather, required the State to prove the dates of birth beyond a reasonable doubt. 
Accordingly, the jury charge did not relieve the State of its burden to prove that element of
the crimes. (3)  Moreover, any error would be harmless, given that the State proved the
complainants' birth dates, which Saldaña did not contest at trial.  Almanza, 686 S.W.2d at
171 (harmless error standard applies, and court must consider state of evidence and
contested issues to determine harm); Glockzin, 220 S.W.3d at 153.  We overrule
Saldaña's first issue.
III.  Right to Self-representation
 By his second and third issues, Saldaña argues that he was denied his
constitutional right to represent himself.  See U.S. Const. amend. VI; Tex. Const. art. 1,
§ 10; Faretta v. California, 422 U.S. 806, 834 (1975); Funderburg v. State, 717 S.W.2d
637, 641-42 (Tex. Crim. App. 1986).  First, Saldaña admits in his brief that his pre-trial
request was for hybrid representation--essentially, he wanted to be co-counsel with his
appointed attorney.  Nevertheless, he argues that his request to cross-examine witnesses
"if he felt his counsel had not done the job he wanted done" was an unequivocal request
for self-representation and that the trial court should have then conducted a Faretta
hearing to determine if he voluntarily and intelligently chose self-representation.  Saldaña
argues that the trial court denied him the right to personalize his defense, requiring reversal
of the conviction, and that the trial court's denial of his request was improperly based on
Saldana's lack of legal training.  Second, for the same reasons, Saldaña asserts that the
trial court denied his constitutional right to represent himself when he denied Saldaña's
mid-trial request to cross-examine witnesses.  We disagree.
	The Sixth Amendment guarantees the right to conduct one's own defense, so long
as the choice of self-representation is made intelligently, knowingly, and voluntarily. 
Faretta, 422 U.S. at 835; DeGroot v. State, 24 S.W.3d 456, 457 (Tex. App.-Corpus Christi
2000, no pet.).  "Although a defendant need not himself have the skill and experience of
a lawyer in order competently and intelligently to choose self-representation, he should be
made aware of the dangers and disadvantages of self-representation, so that the record
will establish that 'he knows what he is doing and his choice is made with eyes open.'"
Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269,
279 (1942)).  The right to self-representation does not attach until the defendant "clearly
and unequivocally asserts it."  DeGroot, 24 S.W.3d at 457 (citing Faretta, 422 U.S. at 835-36); see Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989) (citing
Funderburg, 717 S.W.2d at 642.  
	To the contrary, it is well established that there is no absolute right, under the
federal or state constitution, to hybrid representation.  See Scarbrough, 777 S.W.2d at 92
(citing McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); Landers v. State, 550 S.W.2d 272,
278 (Tex. Crim. App. 1977) ("This Court has consistently interpreted Article 1, Section 10,
supra, to allow an accused and his counsel to be heard at trial in appropriate situations,
but not to expand or alter the right to counsel or in any way give the accused the right to
hybrid representation.")). (4)
  Although a defendant has no absolute right to hybrid
representation, a trial court has discretion to allow it.  Id. ("[A] trial court may certainly
permit hybrid representation in its discretion.").  
	In this case, the trial court refused to allow hybrid representation.  At the pretrial
hearing, the following exchange occurred:
	Sanchez: 		Okay.  That's all I have for the Court.  Excuse me. 
Judge, my client also has asked me to ask the Court
that during the trial, when I'm cross-examining
witnesses, if he feels that I'm not asking the proper
questions or feels that there's other questions he wants
asked, he wants permission from this Court to take over
and do some cross-examination of his own as a pro se
litigant.
 
	The Court: 		Well, Mr. Saldaña, the - you are represented by Mr.
Sanchez, who is a very competent lawyer.  And -
 
	The Defendant: 	Yes.
 
	The Court: 		Listen me [sic].
 
	The Defendant: 	Okay.						
 
	The Court: 		And the reason that the Court appointed Mr. Sanchez
is because you are not trained as a lawyer and you
don't understand the procedure and you don't
understand the overall scope of what has to happen in
a trial.  That's why the Court appointed Mr. Sanchez,
okay?  That's for your best interests.  Okay.  That's
what we're trying to do here is protect your interests.
 
	The Defendant: 	Yes, sir.
 
	The Court: 		Now, you have opted, based on what's been
represented to the Court, to go ahead and go forward
with a trial in this case, and we're going to select a jury
in this case this afternoon.
 
	The Defendant: 	Okay, yes, sir.
 
	The Court: 		And we're going to begin the evidence tomorrow
morning in this case, all right?  Now, but as far as the
Court is concerned, Mr. Sanchez is your lawyer.  If you
have something you want to suggest to Mr. Sanchez,
then you can either write him a little note or you can
whisper in his ear; but he is the one that's going to be in
charge of your case in trying this case, okay?  And the
reason we are doing that is because that's in your best
interest is to protect you.  Remember that the purpose
of a trial is to determine your guilt or innocence.  That's
the purpose.  Nobody is saying you are guilty.
 
	The Defendant: 	Okay.
 
	The Court: 		The purpose is for those 12 people that are going to be
selected this afternoon to determine at the end of the
trial of all the evidence whether they are going to find
you guilty or not guilty.
 
	The Defendant: 	Yes, I understand that.
 
	The Court: 		That's the purposes [sic].  That's his job is to make sure
that your rights are protected, to make sure that he
does everything to protect your interests throughout the
course of the trial.  And if you feel like any other person
that comes here before the Court and has a lawyer, that
the lawyer needs to follow up on something, you make
a suggestion to him.  He'll be the one doing the
questioning.
 
	The Defendant: 	Okay.
 
	The Court: 		Okay?
 
	The Defendant: 	Thank you.
 
	The Court: 		Thank you.
 
	Saldaña argues that although he requested hybrid representation prior to trial, that
request constituted an unequivocal assertion of the right to self-representation, and the trial
court erroneously denied his right to self-representation by relying on his lack of legal
training.  We disagree.  
	In Scarbrough v. State, the Texas Court of Criminal Appeals addressed a situation
where the defendant initially clearly and unequivocally asserted his right to self-representation.  Id. at 93.  The trial court offered the defendant standby counsel, to which
the defendant was receptive.  Id.  The trial court ultimately decided not to allow the
defendant to represent himself either alone or with standby counsel.  Id. at 89.  The court
of appeals held that "a defendant may forfeit his right to self-representation by taking
vascillating positions on the issue."  Id. at 92.  The court of criminal appeals, however, held
that a request for standby counsel made after an unequivocal assertion of the right to self-representation is not necessarily inconsistent with the right to self-representation; thus, the
defendant could not be said to have vascillated.  Id. at 93.  Accordingly, the court held that
the trial court violated Scarbrough's Sixth Amendment right to self-representation and
reversed the conviction.  Id. at 94.
	We find that Scarbrough is distinguishable.  In Scarbrough, the defendant first
unequivocally asserted his right to self-representation and only accepted standby counsel
after the trial court offered it.  Id. at 93 ("While clearly willing to accept aid of standby
counsel, appellant thus displayed an unwavering desire to conduct his own defense, for
better or worse.").  In this case, however, prior to trial Saldaña never asked to be allowed
to control his own defense on his own.  Rather, Saldaña requested that trial counsel
continue his defense and that he be allowed to ask some questions if he felt that trial
counsel was not adequately questioning the witness.  This is merely a request to serve as
co-counsel with the defense lawyer; it is not an unequivocal request for self-representation
sufficient to require the trial court to conduct a Faretta hearing.  See United States v. Treff,
924 F.2d 975, 979 n.6 (10th Cir. 1991); Cross v. United States, 893 F.2d 1287, 1291-92
(11th Cir. 1990); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C. Cir. 1988). (5) 
Saldaña never indicated he wanted to represent himself by himself.  
	The trial court commented on Saldana's inability to adequately preserve his own
rights, which would have been an inappropriate reason to deny a request for self-representation had a proper request for self-representation been made.  See Faretta, 422
U.S. at 835.  Nevertheless, here, the trial court was not required to hold a Faretta hearing
and did not deny Saldaña's constitutional right to self-representation because Saldana's
initial request to cross-examine witnesses was not an unequivocal assertion of the right to
self-representation.
	Saldaña's second request during trial to cross-examine witnesses suffers from the
same infirmity.  In mid-trial, outside the presence of the jury, the following exchange
occurred:
	Mr. Dan Sanchez: 		Judge, I think my client would like to address the
Court.	
 
	The Defendant: 		I changed my mind, Your Honor.
 
	The Court: 			Very well.
 
	Mr. Dan Sanchez: 		You're sure?
 
	The Defendant: 		No.
 
	Mr. Dan Sanchez: 		Well, let me just put it on the record, Judge.  My
client again has asked me to inform the Court,
and I told him he should inform the Court, but he
wants to continue the trial pro se with me
assisting him.  He feels I'm not doing an
adequate job and that he knows his case better
than I do, and he wants to take over.
 
	The Court: 			Is that your feeling, Mr. Saldaña?

	The Defendant: 		Yes, sir, if they can bring back the witnesses. 
Recall them, because I would like to ask my own
questions on that because--
 
	The Court: 			Let me remind you of what I told you at the
beginning of the trial before we started, when
you first made a request that you wanted to ask
some questions yourself.  At that time I think I
told you that the Court had appointed somebody
that was qualified to represent your interest.  And
the Court only appoints qualified attorneys.  And
the Court appoints three attorneys in this court,
and they are all very qualified people, number
one.  Number two, you are not trained.  
 
	The Defendant: 		Just simple questions.
 
	The Court: 			Listen to me.  You're not trained.  Number three,
I know that sometimes in the jailhouse you have
a lot of jailhouse lawyers.  Listen to me.  They
have a lot of jailhouse lawyers.  They have all
kinds of advice for you; but it's in your best
interest that you let this man continue directing
all the questions.  And he'll do--you've seen him
where he objects.  He'll do what he is supposed
to do.  So at this time I'm going to deny your
request and I'm going to let the trial continue.

Saldaña's counsel informed the court that Saldaña wanted to "take over" but also indicated
that Saldaña preferred to have his counsel assist him throughout the remainder of the trial. 
Again, this is not an unequivocal request for self-representation.   Nowhere in the record
is there any indication that Saldaña wanted to conduct the trial on his own.  Accordingly,
we overrule Saldaña's issues two and three.
IV.  Double Jeopardy Violations
	In his eighth issue, Saldaña argues that we should vacate his conviction under
Count I of the indictment because punishment for the acts alleged in Count I violates the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.  U.S.
Const. amend. V.  Specifically, Saldaña complains that the evidence supporting Counts
I and II of the indictment constituted one sequence and course of events--i.e. the
allegation that he touched B.B.'s vagina with his finger (Count I-indecency with a child) is
subsumed within the allegation that he penetrated B.B.'s vagina with his finger (Count
II-aggravated sexual assault) because the touching occurred in the process of the
penetration.  The only difference between these two counts, he argues, is completion of
the aggravated sexual assault alleged in Count II.  The trial court assessed thirty-five years
imprisonment for Count I and also assessed thirty-five years imprisonment for Count II, to
run consecutively.  Thus, he argues he is being punished twice for the same offense.  
	In contrast, the State points out that Saldaña's counsel did not object in the trial
court on this ground.  It argues that, therefore, the double jeopardy violation must be
apparent on the face of the record.  The State argues that the outcry witness, Hermila
Gomez, testified that Saldaña touched B.B.'s vagina with his finger five times on the same
night and also penetrated her vagina with his finger that same night.  The State argues that
these acts are separate, and because there were valid theories for the multiple convictions,
there is no double jeopardy violation on the face of the record.
	Although Saldaña did not object to a double jeopardy violation at trial, and in most
cases such failure would waive the error, a double jeopardy claim may be raised for the
first time on appeal when the "undisputed facts show the double jeopardy violation is
clearly apparent on the face of the record and when enforcement of usual rules of
procedural default serves no legitimate state interests."  Gonzalez v. State, 8 S.W.3d 640,
643 (Tex. Crim. App. 2000); Shaffer v. State, 477 S.W.2d 873, 876-77 (Tex. Crim. App.
1971).  In this case, Saldaña was tried for both aggravated sexual assault of a child and
for indecency with a child in the same proceeding.  Thus, the trial court knew or should
have known of a potential double jeopardy issue.  Saenz v. State, 131 S.W.3d 43, 50 (Tex.
App.-San Antonio 2003), aff'd, 166 S.W.3d 270 (Tex. Crim. App. 2005).  Additionally,
enforcement of the usual rules of procedural default would serve no legitimate state
interests, given that if we find an actual double jeopardy violation, a retrial would not be
required.  Id.  Rather, the judgment of conviction would merely be reformed to delete the
duplicated punishment.  Id.  Accordingly, we will review the record to determine if a double
jeopardy violation occurred.
	"The Fifth Amendment guarantee against double jeopardy embodies three
protections: against a second prosecution for the same offense following conviction,
against a second prosecution for the same offense following acquittal, and against multiple
punishments for the same offense."  Hutchins v. State, 992 S.W.2d 629, 631 (Tex.
App.-Austin 1999, pet. ref'd, untimely filed).  In this case, Saldaña argues that his
convictions violated the third principle:  he is being punished twice for the same offense. 
"When the same conduct violates different criminal statutes, the two offenses are the same
for double jeopardy purposes if one of the offenses contains all the elements of the other." 
Belt v. State, 227 S.W.3d 339, 344 (Tex. App.-Texarkana 2007, no pet.).  For example,
"greater inclusive and lesser included offenses are the same for jeopardy purposes."
Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). 
	Texas courts have recognized that when the same conduct is used to support a
conviction for indecency with a child and for aggravated sexual assault, the defendant may
be subject to multiple punishments in violation of the Fifth Amendment to the United States
constitution, depending on the facts of the case.  Ochoa v. State, 982 S.W.2d 904, 908
(Tex. Crim. App. 1998);  Hutchins, 992 S.W.2d at 632; also Vick v. State, 991 S.W.2d 830,
834 n.2 (Tex. Crim App. 1999).  Although a person "who commits more than one discrete
sexual assault against the same complainant may be convicted and punished for each
separate act, even if the acts were committed in close temporal proximity," the penal
statutes do not allow "stop-action" prosecutions.  Barnes v. State, 165 S.W.3d 75, 87 (Tex.
App.-Austin 2005, no pet.).  In other words, "a conviction for a completed sexual assault
bars conviction for conduct that is demonstrably part of the commission of that offense." 
Id.  For example, "penile contact with [the] mouth, genitals, or anus in the course of penile
penetration will be subsumed."   Patterson v. State,152 S.W.3d 88, 92 (Tex. Crim. App.
2004).  
	The Texas Court of Criminal Appeals has explained:
	It is clear that sexual exploitation of children is of great concern to the
legislature.  The offenses enumerated by the legislature cover a range of
deviant sexual conduct, beginning with exposure and continuing through
sexual contact to penetration and including incest and child prostitution.  The
scheme encompasses escalation of abuse; no matter where in the range the
perpetrator stops, the offense is complete at that point.  That is not to say
that every offense in the range can in all cases be prosecuted as a separate
offense.  While it is clear from the plain language of the various statutes that
the legislature intended harsh penalties for sexual abuse of children, there
is nothing in the language to suggest that it intended to authorize "stop-action" prosecution.  Just as a conviction for a completed offense bars
prosecution for an attempt to commit the same offense, a conviction for an
offense set out in § 3.03 [of the Texas Penal Code] bars conviction for
conduct that, on the facts of the case, is demonstrably part of the
commission of the greater offense.  For example, indecency by genital
exposure of oneself in the course of manual penetration of another are
separate offenses, while penile contact with mouth, genitals, or anus in the
course of penile penetration will be subsumed. 

Patterson, 152 S.W.3d at 91-92.  
	In Belt v. State, the defendant was convicted of indecency with a child for contacting
the complainant's anus with his penis and for penetrating the complainant's anus with his
penis.  227 S.W.3d at 344.  The evidence used to convict the defendant for the indecency
count was precisely the same as that relied upon for the penetration conviction: "there is
no evidence that Belt touched part of J.Y.'s anus except by his penis."  Id.  Accordingly, the
court of appeals held that the record demonstrated that the defendant had been punished
twice for the same conduct.  Id. at 344-45.
	Here, the record demonstrates that the aggravated sexual assault by penetration
of B.B.'s vagina was based on the same conduct as the alleged indecency with a child by
contact.  Specifically, B.B. testified that on one occasion on a single night, Saldaña
touched her vagina with his finger.  She said that Saldaña pulled down her panties,
touched her from top to bottom of her "middle part . . . where [she] pee[s] from" with his
finger, and then he licked his finger.  She testified that his finger stayed on the "outside." 
Although Gomez testified that B.B. reported that Saldaña touched her five times that night
and penetrated her vagina that same night, there is no indication that these "five times"
occurred after separate time intervals or with other activity in between.  In fact, the
testimony suggests the opposite:  that Saldaña entered the room, touched B.B.'s vagina
and penetrated it in the same course of action, licked his finger, and then B.B. left the
room.  On this record, we hold that Saldaña was punished twice for the same offense: 
touching B.B.'s vagina with his finger in the course of penetrating B.B.'s vagina with his
finger.  See id.  Accordingly, we reform the judgment to delete the conviction for the
offense carrying the less severe punishment which in this case is the conviction for Count
I of the indictment for indecency with a child by contact.
V.  Legal and Factual Sufficiency Challenges
 Saldaña raises legal and factual sufficiency challenges to several of the elements
of the charged offenses.  Specifically, Saldaña asserts that the evidence was legally and
factually insufficient to support the findings:  (1) that the touching of B.B.'s vagina, that is
the subject of Count I of the indictment, was made with the intent to arouse or gratify the
sexual desire of any person; (2) that Saldaña knowingly and intentionally caused the
penetration of B.B.'s vagina, as alleged in Count II of the indictment; and (3) that Saldaña
knowingly and intentionally caused his mouth to contact B.A.'s anus, as alleged in Count
IV of the indictment.  
A.	Legal and factual sufficiency standards of review
	To assess the legal sufficiency of the evidence to support a conviction, we must
consider all the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt based on that evidence and the reasonable inferences therefrom.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  We
must give deference to "'the responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.'" Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19).
	In contrast, in a factual-sufficiency review, we must review the evidence in a neutral
light rather than in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d
521, 524 (Tex. Crim. App. 2007), cert. denied, 128 S.Ct. 282 (2007); Watson v. State, 204
S.W.3d 404, 414 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim.
App. 2000).  The evidence is factually insufficient when either "the evidence supporting the
verdict is so weak that the verdict seems clearly wrong and manifestly unjust" or "the
supporting evidence is outweighed by the great weight and preponderance of the contrary
evidence so as to render the verdict clearly wrong and manifestly unjust." Roberts, 220
S.W.3d at 524; Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 11.  Although we
have the ability to second-guess the jury to a limited extent, our review should nevertheless
be deferential, "with a high level of skepticism about the jury's verdict required before a
reversal can occur."  Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417.
B.	Evidence of intent to arouse or gratify sexual desire (Count I of the indictment)
	In Count I of the indictment, Saldaña was charged with committing indecency with
a child by contact, in violation of Texas Penal Code section 21.11(a)(1).  Tex. Penal Code
Ann. § 21.11(a)(1).  Because we have vacated Saldaña's conviction under this Count, it
is unnecessary to consider his arguments under issue four with regard to the legal and
factual sufficiency of the evidence supporting that conviction.   See Tex. R. App. P. 47.1. 
Accordingly, we overrule Saldaña's fourth issue.
C.	Evidence of vaginal penetration (Count II of the indictment)
 In his fifth issue, Saldaña challenges the legal and factual sufficiency of the
evidence supporting Count II of the indictment, wherein the State alleged that Saldaña
intentionally or knowingly caused the penetration of B.B.'s sexual organ.  See Tex. Penal
Code Ann. § 22.021(a)(1)(B)(i).  Saldaña argues that B.B. expressly denied that Saldaña
penetrated her vagina; therefore, the only evidence of penetration comes from outcry
testimony. (6)
  Saldaña argues that after Crawford v. Washington, 541 U.S. 36 (2004) and
Davis v. Washington, 126 S.Ct. 2266 (2006), outcry testimony alone cannot provide a
"substantive basis for imposing culpability when it fails after confrontation."  In other words,
Saldaña asks if the complainant testifies at trial in such a manner that contradicts her
previous outcry testimony, does the outcry testimony still remain probative evidence of
guilt?
	Neither Crawford nor Davis, however, support Saldaña's argument.  Both cases
were decided under the Confrontation Clause of the United States Constitution, and they
discuss the circumstances under which that clause is violated--the Confrontation Clause
is violated when testimonial statements are admitted into evidence when the declarant is
unavailable and where there is no prior opportunity to cross-examine.  Davis, 126 S.Ct. at
2273; Crawford, 541 U.S. at 68.  Neither case discusses the substantive value of out-of-court testimonial statements that are admitted into evidence where there is an opportunity
to cross-examine the declarant, as there was here.  In fact, Crawford notes in a footnote
that "when the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements."  Crawford, 541
U.S. at 59 n.9. (7)  Thus, Crawford actually suggests the opposite of Saldaña's position. 
Saldaña cites no subsequent case that interprets these cases in the manner he suggests. 
	On the contrary, it is well established that outcry testimony is substantive evidence
of guilt that is sufficient to support a conviction beyond a reasonable doubt.  See Rodriguez
v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).  Furthermore, when a witness
recants prior testimony, it is up to the fact finder to determine whether to believe the
original statement or the recantation.  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim.
App. 1991).  A fact finder is fully entitled to disbelieve a witness's recantation.  Id. (8) 
	The outcry testimony here was sufficient to sustain Saldaña's conviction, and the
jury was entitled to disbelieve B.B.'s inconsistent testimony at trial that Saldaña did not
penetrate her sexual organ.  Accordingly, we refuse to hold that the outcry testimony in this
case cannot support the judgment for conviction merely because B.B. denied penetration
at trial.  The jury was entitled to disbelieve this recantation of her previously given outcry
statement.  Finding no merit to Saldaña's argument, we overrule issue five.
D.	Evidence of anal contact
	By issue six, Saldaña argues that there is legally and factually insufficient evidence
to support his conviction under Count IV of the indictment (Count III of the jury charge). 
In that count, the State alleged that Saldaña intentionally or knowingly caused the anus of
B.A. to contact Saldaña's mouth.  See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iv). 
	Saldaña essentially argues that the evidence is legally and factually insufficient to
support the finding that he caused his mouth to contact B.A.'s anus because the word
"anus" was never used during the testimony.  B.A. testified that Saldaña had touched her
where she "peed" and "pood."  She also circled the central buttocks area in a drawing. 
Romero, the witness who testified as to B.A.'s outcry, testified that B.A. stated that Saldaña
had "licked her in her butt."  Saldaña argues that, although a child is not required to testify
as precisely as an adult, the testimony must still be understood to meet the definition of
anus, which Saldaña defines as the "posterior opening of the alimentary canal--thus
excluding the buttocks."  Appellant's Brief at 38 (citing Wright v. State, 693 S.W.2d 734,
735 (Tex. App.-Dallas 1985, pet. ref'd) (reversing conviction for defective indictment that
alleged mere touching of the buttocks, not the anus)).  He argues that the testimony merely
shows that Saldaña may have licked B.A.'s buttocks, not her anus, as required for a
conviction.
	We disagree that B.A.'s testimony and that of the outcry witness were too imprecise
to support a conviction under Texas Penal Code section 22.021(a)(1)(B)(iv).  We have
previously held that evidence showing penetration of the complainant's "butt" was legally
sufficient to sustain a conviction for penetration of the "anus."  See Ozuna v. State, 199
S.W.3d 601, 609 (Tex. App.-Corpus Christi 2006, no pet.).  Other courts have likewise
allowed juries to infer that a child's reference to an act performed "in the butt" or the place
where the child goes to the bathroom is sufficient to identify the anus.  Mallet v. State, 9
S.W.3d 856, 864 (Tex. App.-Fort Worth 2000, no pet.) ("[T]he jury could reasonably infer
that K. A.'s reference to 'butt' or 'backside where she goes to the bathroom' was a
reference to her anus."); see also Martinez v. State, Nos. 14-03-00596-CR & 14-03-00597-CR, 2004 Tex. App. LEXIS 4649, at *4 (Tex. App.-Houston [14th Dist.] May 25, 2004, pet.
ref'd) (mem. op.) ("The jury could have rationally concluded that 'in my butt' indicated
penetration of the anus.").  Accordingly, we find that the outcry testimony was sufficient to
establish contact with the anus.  Saldaña's sixth issue is overruled.
VI.  Ineffective Assistance of Counsel
	In his seventh issue, Saldaña argues that he received ineffective assistance of
counsel based on his trial counsel's failure to raise various objections to the testimony of
Martinez, Gomez, and Romero as outcry witnesses.  Saldaña argues that but for the
erroneous admission of the outcry testimony, he would not have been convicted.  We
disagree.
A.	Strickland test
	This Court utilizes the two-pronged Strickland test to determine whether counsel's
representation was so deficient that it violated a defendant's Sixth Amendment right to
counsel.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Jaynes v.
State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.); see Strickland v.
Washington, 466 U.S. 668, 684 (1984).  Under that test, appellant must establish that "(1)
his attorney's representation fell below an objective standard of reasonableness, and (2)
there is a reasonable probability that, but for his attorney's errors, the result of the
proceeding would have been different."  Jaynes, 216 S.W.3d at 851; see Strickland, 466 
U.S. at 687.  
	Our review is necessarily deferential--an appellant "must overcome the strong
presumption that counsel's conduct fell within the wide range of reasonable professional
assistance."  Jaynes, 216 S.W.3d at 851.  The appellant bears the burden of proving both
elements of an ineffective assistance claim by a preponderance of the evidence.  Munoz
v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.).  
	The acts or omissions complained of must appear on the record.  Id.  The Texas
Court of Criminal Appeals has observed that in most cases on direct appeal, a silent record
providing no explanation for counsel's conduct will be insufficient to overcome the
presumption of reasonableness.  Goodspeed, 187 S.W.3d at 392.  It is "critical that the
defendant obtain the necessary record in the trial court to rebut the Strickland presumption
that counsel's conduct was strategic."  Batiste v. State, 217 S.W.3d 74, 83 (Tex.
App.-Houston [1st Dist.] 2006, no pet.); Green v. State, 191 S.W.3d 888, 894-95 (Tex.
App.-Houston [14th Dist.] 2006, pet. ref'd).
  	An appropriate record--including counsel's reasons for his actions--is usually
prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. 
Id.  "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.'"  Goodspeed, 187 S.W.3d at 392 (quoting
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)).  Absent an opportunity
for the attorney to explain his actions, an appellate court should not "find deficient
performance unless the challenged conduct was 'so outrageous that no competent
attorney would have engaged in it.'"  Goodspeed, 187 S.W.3d at 392 (quoting Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
B.	Failure to object to the testimony of Martinez and Gomez
	Saldaña argues that his trial counsel failed to object to the testimony of Martinez and
Gomez on the grounds that the State did not give notice as required by Texas Code of
Criminal Procedure article 38.072 or hold a hearing to determine reliability.  Tex. Code
Crim. Proc. Ann. art. 38.072 (Vernon 2005). (9)  According to Saldaña, the State gave notice
only of its intent to call Romero as an outcry witness.  
	On this record, we cannot conclude that the failure to object was not trial strategy. 
Although Saldaña filed a motion for new trial, there is no affidavit from his trial counsel
explaining his actions.  Furthermore, Saldaña does not cite any evidence in the record
demonstrating counsel's reasons for failing to object to lack of notice.   In the absence of
direct evidence of counsel's motives, courts will presume a trial strategy if one can be
imagined. Josey v. State, 97 S.W.3d 687, 696-97 (Tex. App.-Texarkana 2003, no pet.);
Cates v. State, 72 S.W.3d 681, 699-700 (Tex. App.-Tyler 2001, no pet.).  Several courts
have held that the failure to object to outcry testimony could be a plausible trial strategy. 
Hankey v. State, 231 S.W.3d 54, 59-60 (Tex. App.-Texarkana 2007, no pet.); Josey, 97
S.W.3d at 696-97.  
	The record reflects that Saldaña's counsel did not seem at all surprised when these
women testified and even specifically referred to Gomez as the "outcry" witness.  In fact,
Martinez did not repeat any specific report of the incidents until Saldaña's counsel elicited
her testimony on cross-examination.  Saldaña's trial counsel then elicited specific
testimony about the outcries to Martinez and Gomez in an attempt to show inconsistencies
and discredit their testimony.  While Saldaña's counsel questioned Martinez, the following
exchange occurred:
	Q.	Okay.  So if Ms. Gomez said that [B.B.] never told her anything about
[Saldaña exposing himself], Ms. Gomez would be mistaken, or would
you be mistaken about this?

	A.	About the time when it happened?

	Q.	About saying that.

	A.	Well, this is what B.B. told me.  I don't know if Ms. Gomez--

	Q.	Because Ms. Gomez says she didn't tell her anything about that.

	A.  	Oh, well.

	Q.	So is she right or are you right?

	A.	Gosh, I don't--I heard that part.  Now, I don't know if Ms. Gomez
wasn't listening, because I know B.B. was crying, but--

	Q.	So one of you is wrong, correct?

	A.	Probably.
In fact, in his closing statement, trial counsel again referred to the "outcry witness,"
presumably Gomez, who "said that [B.B.] told her he touched her five times. [B.B.] said
only once."  Thus, Saldaña's counsel also attempted to use the outcry testimony to
discredit the complainant's testimony at trial.  Pointing out inconsistencies in testimony in
attempt to discredit the State's main witnesses is certainly a plausible trial strategy. 
Hankey, 231 S.W.3d at 59-60 (holding that appellant failed to satisfy first prong of
Strickland test because record showed trial counsel used inadmissible outcry testimony to
discredit the complainant's testimony); Josey, 97 S.W.3d at 696-97. On this record, we
find that Saldaña has failed to establish that he received ineffective assistance of counsel.
C.	Failure to object to Romero's testimony
	Second, Saldaña argues that the notice provided regarding Romero's testimony was
insufficient.  Saldaña argues that the notice related only to Count III of the indictment,
which alleged that Saldaña intentionally or knowingly engaged in sexual contact with B.B.
by touching her anus with his finger or hand.  Because that Count was dismissed, Saldaña
argues that the notice was ineffective to allow Romero to testify as to any of the other
alleged offenses, and trial counsel should have objected on that ground.  Additionally,
Saldaña argues that trial counsel should have requested a hearing to determine the
reliability of her testimony.
 On July 14, 2003, the State gave notice of its intent to use an outcry statement
made to outcry witness Romero.  The notice stated:  "Ms. Romero, will testify that the
victim, [B.A.] (10), told her that the defendant, Jesus Saldaña, touched her private parts, that
he would lower her panties and used his tongue to lick her insider [sic] her buttocks."  This
notice clearly related to Count IV of the indictment, which was not dismissed, and it was
sufficient to allow Romero to testify as to that count.  Counsel is not deficient for failing to
take action that is without legal basis.  Oliva v. State, 942 S.W.2d 727, 732 (Tex.
App.-Houston [14th Dist.] 1997, pet. dism'd).  Because an objection to Romero's testimony
could not have properly been sustained, counsel's failure to object was not ineffective
assistance of counsel.  Bradshaw v. State, 65 S.W.3d 232, 240 (Tex. App.-Waco 2001,
no pet.). Accordingly, we reject Saldaña's argument that the notice was insufficient.
	Furthermore, we cannot say on this record that trial counsel's failure to object and
to request a hearing on reliability was not trial strategy.  Saldaña's trial counsel questioned
Romero extensively about the progress of her interview with B.A.  B.A. reported to Romero
that Saldaña "licked her in her butt."  B.A. nevertheless told Romero that the contact was
through her clothing.  Trial counsel pressed further.  Romero then admitted that after B.A.'s
inconsistent response, Romero left the room to consult with investigators and then returned
to the room to press B.A. further.  Saldaña's trial counsel argued at trial that Romero
manipulated the situation to get an accusation from B.A. that would constitute a criminal
offense, and he also argued that Romero's interview caused B.A. to change her story.  This
is certainly a plausible trial strategy.  Josey, 97 S.W.3d 696-97.  It just did not work this
time.  Hankey, 231 S.W.3d at 60 ("While a tactical decision to not object to the admission
of evidence that is otherwise inadmissible (when that evidence might also be used to point
out inconsistencies in the victim's story and might be used to demonstrate that various
witnesses and police agencies do not themselves believe the victim's story) might not have
proven to be a successful trial strategy in this particular case, we cannot say such a
strategy is either unreasonable or patently ineffective.").  Accordingly, we do not find that
Saldana's counsel was ineffective for failing to object to Romero's testimony.
D.	Confrontation clause objections
	Finally, Saldaña argues that trial counsel failed to make Crawford-Davis objections,
referencing his arguments under his fifth issue.  As we stated above, however, the Sixth
Amendment was not violated in any way here because both of the complainants were
present in court and available for cross-examination.  Davis, 126 S.Ct. at 236-37; Crawford,
541 U.S. at 68.  Counsel was, therefore, not deficient in this regard. Oliva v. State, 942
S.W.2d at 732.  Saldaña's seventh issue is overruled.
VII.  Variance Between the Indictment and the Jury Charge
 In his ninth and final issue, Saldaña complains of a variance between the jury
charge and judgment of conviction and the indictment.  Saldaña was indicted on four
counts:  Count I (indecency with a child by contact), Count II (aggravated sexual assault
of a child), Count III (indecency with a child by contact), and Count IV (aggravated sexual
assault of a child).  Before trial, the State moved to dismiss Count III of the indictment. 
Saldaña's trial counsel requested that jury charge be numbered in such a way that the jury
not be able to surmise about the dismissed count.  He further requested that the indictment
be amended to reflect the dismissal.  The trial court renumbered the jury charge and
agreed to amend the indictment, but apparently, the indictment was never formally
amended.  Thus, in the jury charge, Counts I and II were exactly as stated in the
indictment.  However, Count IV of the indictment was renumbered as Count III of the
charge, and the judgment of conviction also reflects this renumbering.  Saldaña argues that
reading the judgment of conviction in conjunction with the unamended indictment, it
appears that he was convicted for a dismissed count of the indictment.
	The State, on the contrary, argues that it was Saldaña that requested the
renumbering of the counts in the jury charge so that the jury would not speculate that there
were other charges against him.  It argues that Saldaña should be estopped from
complaining about the error in the jury charge because he invited the error, citing Prystash
v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc).  Additionally, the State
argues that the only variance that could result in reversal of a conviction is that between
the charging instrument and the proof at trial.  Gollihar v. State, 46 S.W.3d 243, 246 (Tex.
Crim. App. 2001).  And in that circumstance, a material variance is only fatal if it operated
to the defendant's surprise or prejudiced his rights.  Id. at 248.
	At the outset, we note that this case does not fit neatly within the invited error
doctrine.  Saldaña asked the trial court to amend the indictment, and the trial court agreed
to do so.  The trial court, however, never did.  Thus, the error Saldaña complains of is not
that which Saldaña invited--it is the trial court's failure to follow through with its own ruling. 
However, we disagree that the difference between the indictment and the jury charge
operated as a surprise to Saldaña or prejudiced his rights.  
	Neither party cites, nor have we located, a case that addresses this precise issue. 
It is not clear from the record that the indictment was read to the jury at the beginning of
the proceedings and that they were apprised of the dismissed count.  The jury charge itself
makes no mention of the dismissed count.  On this record, without any explanation of how
Saldaña was harmed by the trial court's failure to amend the indictment, we refuse to
reverse on this ground.  We overrule Saldaña's ninth issue.
VIII.  Conclusion
	Because we conclude that the conviction under Count I for indecency with a child
by contact violates the Double Jeopardy Clause of the Fifth Amendment, we vacate the
conviction for Count I of the indictment and reform the trial court's judgment of conviction
to reflect our decision.  In all other respects, we affirm.

								___________________________
								GINA M. BENAVIDES
								Justice
Publish.
Tex. R. App. P. 47.2(b).

Opinion delivered and filed this
the 21st day of February, 2008.





1.  Hermila Gomez was called to the stand first.  After she indicated that B.B. initially spoke to Mary
Martinez, Saldaña's counsel made a general objection, and a conversation off the record occurred.  Gomez
was excused so that Martinez could be called first.  Gomez was then called back to the stand.   When Gomez
finished testifying, Martinez was called back to the stand for further questioning.  For the sake of simplicity,
the testimony is summarized here without indication of the order of the testimony.
2.  "Whenever it appears by the record in any criminal action upon appeal that any requirement of
Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed
unless the error appearing from the record was calculated to injure the rights of defendant, or unless it
appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge
and to the refusal of special charges shall be made at the time of the trial."  Tex. Code Crim. Proc. Ann. art.
36.19 (Vernon 2006).
3.   We previously held as much, albeit in an unpublished decision.  Koole v. State, No. 13-06-026-CR,
2007 Tex. App. LEXIS 2409815, at *3 (Tex. App.-Corpus Christi Aug. 24, 2007, no pet.) (mem. op.) (not
designated for publication).
4.  Nevertheless, Saldaña argues that Article I, section 10 of the Texas Constitution guarantees the right
to hybrid representation.  That provision states that a defendant "shall have the right of being heard by himself
or counsel, or both." Tex. Const. art. I, § 10.  However, the Texas Court of Criminal Appeals has expressly
held that this provision does not provide a constitutional right to hybrid representation.  Landers v. State, 550
S.W.2d 272, 278 (Tex. Crim. App. 1977).   We are not at liberty to disregard this express holding.  
5.  Although not precedential, several unpublished courts of appeals decisions have held that a
defendant's request to serve as co-counsel with his trial counsel is not an unequivocal assertion of the right
to self-representation requiring a Faretta hearing.  See Glover v. State, No. 14-03-00763-CR, 2004 Tex. App.
LEXIS 4889, at *5-6 (Tex. App.-Houston [14th Dist.] June 1, 2004, pet. dism'd) (mem. op.) (not designated
for publication); Denmark v. State, No. 06-02-00222-CR, 2004 Tex. App. LEXIS 1674, at *7 (Tex.
App.-Texarkana Feb. 20, 2004, no pet.) (not designated for publication); Tepp v. State, No. 2-03-240-CR,
2004 Tex. App. LEXIS 1430, at *7-9 (Tex. App.-Fort Worth Feb. 12, 2004, pet. ref'd untimely filed) (not
designated for publication); Richmond v. State, No. 04-95-00326-CR, 1996 Tex. App. LEXIS 4670, at *6-9
(Tex. App.-San Antonio Aug. 7, 1996, no pet.) (not designated for publication); Mosley v. State, No. 05-93-00606-CR, 1995 Tex. App. LEXIS 3857, at *11-12 (Tex. App.-Dallas May 22, 1995, no pet.) (not designated
for publication).
6. At trial, B.B. testified as follows:

	Q.	Okay.  Now, when he touched you on your middle part, did it go inside or stay on the
outside?

	A.	Outside.

	Q.	Okay.  So it never went inside?

	A.	No.

Hermila Gomez, however, testified that B.B. reported that Saldaña had stuck his finger inside her private parts.

7.  Several courts of appeals, including our own, have rejected Saldaña's arguments, albeit in
unpublished decisions.  See, e.g., Veseley v. State, No. 12-06-00131-CR, 2007 Tex. App. LEXIS 5611, at *9-10 (Tex. App.-Tyler July 18, 2007, no pet.) (mem. op.) (not designated for publication); Moreno v. State, No.
13-03-649-CR, 2005 Tex. App. LEXIS 4091, at *4-5 (Tex. App.-Corpus Christi May 26, 2005, pet. ref'd) (mem.
op.) (not designated for publication).
8.  See also Jochims v. State, No. 13-06-285-CR, 2007 Tex. App. LEXIS 5905, at *9-10 (Tex.
App.-Corpus Christi July 26, 2007, no pet.) (mem. op) (not designated for publication).
9.  Article 38.072 provides that outcry statements are not inadmissible under the hearsay rule if: 

	(1) 	on or before the 14th day before the date the proceeding begins, the party intending
to offer the statement:

		(A) 	notifies the adverse party of its intention to do so;

		(B) 	provides the adverse party with the name of the witness through whom it
intends to offer the statement; and

		(C) 	provides the adverse party with a written summary of the statement;

	(2) 	the trial court finds, in a hearing conducted outside the presence of the jury, that the
statement is reliable based on the time, content, and circumstances of the
statement; and

	(3) 	the child testifies or is available to testify at the proceeding in court or in any other
manner provided by law.

Tex. Code Crim. Proc. Ann. art. 38.072 § 2(b) (Vernon 2005).  
10.   B.B. and B.A. are sisters with different last names.  The notice incorrectly provided B.A.'s first
name along with B.B.'s last name.  However, the indictment clearly alleged in Count IV that Saldaña caused
his mouth to contact B.A.'s anus.  Saldaña does not contest the notice on this ground. 

