                                   In The

                             Court of Appeals

                  Ninth District of Texas at Beaumont

                           _________________

                            NO. 09-16-00303-CR
                            NO. 09-16-00307-CR
                           _________________


               ROBERT COR’DARIUS TAYLOR, Appellant

                                     V.

                     THE STATE OF TEXAS, Appellee

________________________________________________________________________

                  On Appeal from the 221st District Court
                        Montgomery County, Texas
           Trial Cause Nos. 16-07-08241-CR and 16-07-08240-CR
________________________________________________________________________

                        MEMORANDUM OPINION

     In separate indictments, the State charged Robert Cor’Darius Taylor with

aggravated sexual assault of a child younger than fourteen, stemming from two




                                     1
incidents occurring on or about June 1, 2007, and July 1, 2007.1 See Tex. Penal Code

Ann. § 22.021(a)(1)(B) (West Supp. 2017).2 A jury tried and convicted Taylor in

both causes. The jury assessed punishment at seventy-five years in each cause

number, and the judge stacked the sentences to run consecutively. Taylor appeals

his conviction.

      In five issues, Taylor argues (1) the evidence is insufficient to support a

conviction for aggravated sexual assault of a child; (2) the trial court erred in refusing

to charge the jury with the lesser included offense of indecency with child; (3) the

trial court erred in allowing the State to introduce extraneous bad acts when

counsel’s questions had not “opened the door” and the admitted extraneous acts were

not offered to refute a defensive theory; (4) the State engaged in on-going

prosecutorial misconduct of such a magnitude that it deprived the accused of

fundamental fairness and due process of law; and, (5) the trial court abused its

discretion when its response to a jury question exceeded the scope of the question



      1
         The Montgomery County grand jury originally indicted Taylor in Trial
Cause Number 15-11-12548-CR on November 24, 2015. The grand jury then re-
indicted Taylor on July 19, 2016, in two separate trial cause numbers, 16-07-08241
arising out of the incident occurring on or about July 1, 2007, and 16-07-08240
arising out of the incident occurring on or about June 1, 2007. The State moved to
join the prosecutions of Trial Cause Numbers 16-07-08241 and 16-07-08240.
       2
         We cite to the current version of the Penal Code provisions, as the
amendments made to the cited statutes do not affect this appeal.
                                          2
and provided information for which the jury had not indicated there was a dispute.

We affirm the trial court’s judgment.

                                   I. Background

      The complainant is B.C.3 Taylor is B.C.’s paternal uncle.4 The charges of

aggravated sexual assault of a child arose out of two separate incidents which

occurred in the summer of 2007 at B.C.’s paternal grandmother’s home in

Montgomery County, Texas, when B.C. was approximately seven years old. B.C.

testified that these were not the only two incidents. B.C. could not recall when Taylor

first started doing bad things to her, but Taylor admitted to B.C.’s father it was when

she was a toddler.

      The indictment for the first incident alleged that

      Taylor, on or about June 01, 2007, . . . did then and there intentionally
      or knowingly cause the sexual organ of B.C., a child who was then and
      there younger than 14 years of age, to contact the sexual organ of the
      defendant, [a]nd . . . that on or about June 1, 2007, . . . [Taylor], did
      then and there intentionally or knowingly cause the penetration of the
      sexual organ of B.C., a child . . . younger than 14 years of age, by
      inserting the Defendant’s sexual organ[.]



      3
         To protect the privacy of the victim, we identify her by her initials. See Tex.
Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process”). We refer to family members who testified by their initials as well.
       4
         At trial, B.C. and other witnesses often referred to Taylor by his nickname,
“Cody.”
                                            3
B.C. testified with specificity that she was vaginally raped one evening when she

spent the night at her paternal grandmother’s house, and her testimony was

consistent with the allegations contained in the indictment.

      The second indictment alleged that

      Taylor, on or about July 01, 2007, . . . did then and there intentionally
      or knowingly cause the anus of B.C., a child who was then and there
      younger than 14 years of age, to contact the sexual organ of the
      defendant, [a]nd . . . on or about July 1, 2007, . . . [Taylor] . . . did then
      and there intentionally or knowingly cause the penetration of the anus
      of B.C., a child who was then and there younger than 14 years of age,
      by inserting the Defendant’s sexual organ[.]”

The second assault also occurred when B.C. was seven, but this time in the bathroom

of her paternal grandmother’s home. B.C. testified in detail regarding this assault,

which supported the allegations charged in the indictment.

      On June 29, 2015, and in the days that followed, B.C. made a delayed outcry

to her mother, R.C., regarding Taylor’s assaults. R.C. testified at trial that B.C. told

her she had something she needed to talk about. At the time, B.C. was fifteen years

old. R.C. indicated B.C. told her she had been molested. R.C. asked B.C. who had

molested her, and she could tell B.C. was nervous. R.C. testified that when she

started going through names, B.C. was shaking and said it was her “Uncle Cody.”

Over the course of several days, B.C. provided details of the abuse to R.C. When

R.C. confronted Taylor on June 29, 2015, and asked him what he did, his response

                                            4
was that he “did not penetrate.” L.C., B.C.’s father, also testified that he confronted

Taylor on June 29, 2015, upon learning of the allegations. L.C. indicated that Taylor

told him, “When I was young I did some stupid stuff. I touched my niece.”

      L.C. and R.C. testified they called the police the day B.C. made the initial

outcry. The police conducted an investigation, which included interviewing Taylor

and having a forensic interview conducted of B.C. After gathering information, the

detective assigned to the case testified she came to the conclusion Taylor committed

two separate offenses of aggravated sexual assault of a child. Her testimony was

consistent with the allegations contained in the indictments.

      During the charge conference, the defense asked for two lesser included

charges, one of which was indecency by contact.5 Tex. Penal Code Ann. §

21.11(a)(1) (West Supp. 2017). The trial court denied the request.

      Prior to trial, Taylor elected to have the jury assess punishment. The jury

convicted Taylor of both offenses of sexual assault of a child and assessed

punishment at seventy-five years for each offense, which was stacked by the trial

court. This appeal ensued.



      5
        The reporter’s record indicates defense counsel switched the two penal code
provisions and their descriptions when requesting the submission of assault and
indecency during the charge conference. The denied assault submission is not an
issue in this appeal.
                                          5
                                     II. Analysis

A. Issue One: Legal Sufficiency

      In his first issue, Taylor argues that the evidence is insufficient to support his

convictions for aggravated sexual assault of a child. See Tex. Penal Code Ann. §

22.021(a)(1)(B). When there is a challenge to the sufficiency of the evidence, we

review the evidence in the light most favorable to the verdict to determine whether

any rational factfinder could have found the essential elements of the offense beyond

a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979) (concluding the Jackson

standard “is the only standard that a reviewing court should apply” when examining

the sufficiency of the evidence)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007). We look to all evidence in the record, including admissible and

inadmissible evidence, and direct and circumstantial evidence. Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999). The jury is the sole judge of the witnesses’

credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,

413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from

facts so long as each inference is supported by the evidence presented at trial. Id.

Accordingly, we are required to defer to the jury’s determinations of weight and

credibility of the witnesses. See Brooks, 323 S.W.3d at 899.

                                          6
      At trial, B.C. testified in great detail regarding both assaults. She recalled that

both incidents occurred in the summer when she was seven years old. B.C. spent the

night at her paternal grandmother’s house with S.W., who is the younger step-sister

of B.C.’s father. S.W., although B.C.’s aunt, is only five years older than B.C. The

girls spent the night watching music videos in the living room of B.C.’s paternal

grandmother’s home. S.W. and B.C. both indicated they fell asleep on couches in

the living room that night. B.C. testified that at some point after she fell asleep,

Taylor woke her up and asked her to get on the floor with him, so she complied.

S.W.’s testimony was consistent with B.C.’s in this regard. S.W. testified that after

witnessing Taylor tell B.C. to get on the floor, she went back to sleep and did not

hear anything else. B.C. testified that Taylor then vaginally raped her with his penis.

      B.C. also testified that in a subsequent incident that summer, Taylor assaulted

her in the bathroom at her grandmother’s house during a family gathering, and she

recalled the family wore green. B.C. testified she was seven years old then, as well.

B.C. indicated all of the other adults were outside when Taylor approached her as

she exited the bathroom. B.C. indicated Taylor ordered her back into the bathroom,

where he proceeded to rape her by inserting his sexual organ into her anus.

      The trial court conducted a 38.072 hearing outside the presence of the jury

regarding B.C.’s mother, R.C., testifying as an outcry witness, because B.C. was less

                                           7
than fourteen at the time the offenses were committed and R.C. is the first person

that B.C. told about the offenses. See Tex. Code Crim. Proc. Ann. art. 38.072 (West

Supp. 2017). The trial court concluded that R.C. could testify as an outcry witness.

      “The testimony of a child victim alone is sufficient to support a conviction for

aggravated sexual assault.” Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas

2002, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West Supp.

2017)); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d.). Moreover, a child victim’s outcry alone can be sufficient to

support a conviction of aggravated sexual assault. Tear, 74 S.W.3d at 560; see also

Tex. Code Crim. Proc. Ann. art. 38.072.

      The testimony of the child victim alone or the testimony of her mother as the

outcry witness alone was legally sufficient to support the jury’s verdict of guilt

beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899; Johnson, 419 S.W.3d at

671; Tear, 74 S.W.3d. at 560. Here, the jury had the benefit of both witnesses, and

their testimonies were consistent.

      Although Taylor denied certain allegations and other witnesses testified they

did not hear anything, “[w]hen the record supports conflicting inferences, we

presume that the jury resolved the conflicts in favor of the verdict.” See Tate, 500

S.W.3d at 413. In viewing all of the evidence in the light most favorable to the

                                          8
verdicts, we conclude the evidence was legally sufficient, and the jury was rationally

justified in finding Taylor guilty beyond a reasonable doubt. See Brooks, 323 S.W.3d

at 899. We overrule Taylor’s first issue.

B. Issue Two: Jury Charge and Lesser Included Offense

      In his second issue, Taylor contends the trial court erred by refusing his

request for the lesser included offense of indecency with a child. See Tex. Penal

Code Ann. § 21.11(a)(1). Taylor argued that the evidence from Detective Acklin

indicated that Taylor touched B.C. with his hand outside of the clothing on her leg,

and there was more than a scintilla of evidence that that occurred. The State

responded that the charging instrument is aggravated sexual assault of a child and

the manner and means is penetration or contact by the penis of the Defendant with

the sexual organ of the victim. The State argued it did not allege finger or finger

touching in the charged offense. The trial court ruled that the request was denied,

because it did not believe indecency was “a lesser included” of the indicted offense.

      In 2007, Texas adopted the cognate-pleadings approach in Hall v. State as the

sole test for determining whether a party is entitled to a lesser included offense

instruction. 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). This involves the

application of a two-step analysis. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim.

App. 2013); Hall, 225 S.W.3d. at 535. In conducting this analysis, we ask whether

                                            9
the elements of the lesser-included offense are included within the proof necessary

to establish the elements of the charged offense and whether there is evidence in the

record that could allow a jury to find the defendant guilty of only the lesser-included

offense. See Meru, 414 S.W.3d at 162–63. “An offense is a lesser included offense

if [] it is established by proof of the same or less than all the facts required to establish

the commission of the offense charged[.]” Tex. Code Crim. Proc. Ann. art. 37.09(1)

(West 2006). “Both statutory elements and any descriptive averments [i.e., manner

and means,] alleged in the indictment for the greater-inclusive offense should be

compared to the statutory elements of the lesser offense.” Ex parte Watson, 306

S.W.3d 259, 273 (Tex. Crim. App. 2009) Said another way, when evaluating

whether a defendant is entitled to a lesser included offense in the jury charge, our

determination should be made by comparing the elements of the greater offense, as

pleaded by the State in the indictment, with the statutory elements defining the lesser

offense. Hall, 225 S.W.3d at 525. Because the first step in the analysis is a question

of law, we conduct a de novo review. See id. at 535; Guzman v. State, 955 S.W.2d

85, 87–89 (Tex. Crim. App. 1997). The second step requires that we ask whether

there is evidence that supports giving the instruction to the jury. Hall, 225 S.W.3d

at 536. In the second step of the analysis, we review the trial court’s decision for an

abuse of discretion.

                                             10
      Taylor focuses on the second prong of the analysis while completely

disregarding the first prong.

      A person commits aggravated sexual assault of a child under the age of

fourteen, if the person intentionally or knowingly: (1) causes the penetration of the

anus or sexual organ of a child by any means or (2) causes the anus of a child to

contact the mouth, anus, or sexual organ of another person, including the actor. Tex.

Penal Code Ann. § 22.021(a)(1)(B)(i), (iv). A person commits the offense of

indecency with a child younger than seventeen years, if the person engages in sexual

contact with the child or causes the child to engage in sexual contact. Tex. Penal

Code Ann. § 21.11(a)(1). Sexual contact means any touching of any part of the body

of a child, including touching through clothing, with the anus, breast, or any part of

the genitals of a person. Tex. Penal Code Ann. § 21.11(c)(2).

      When the State uses one act to prove both offenses, courts have held

indecency with a child to be a lesser included offense of aggravated sexual assault.

See, e.g., Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009); Ochoa v.

State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). In contrast, when the evidence

supporting an indecency charge is distinct from that supporting the charge of

aggravated sexual assault, the indecency charge will not be a lesser included offense

of the aggravated sexual assault, and both could be prosecuted without violating the

                                         11
double-jeopardy clause. See, e.g., Bottenfield v. State, 77 S.W.3d 349, 358 (Tex.

App.—Fort Worth 2002, pet. ref’d) (explaining that evidence showed appellant

touched one of the victims inappropriately twice, thus supporting convictions for

both aggravated sexual assault and indecency).

      When examining the elements as charged in both indictments, the State

alleges that Taylor intentionally or knowingly contacted or penetrated B.C. with his

sexual organ, once vaginally and once anally, which constitutes aggravated sexual

assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iv).

      Despite Taylor’s assertion that there was more than “a scintilla of evidence”

from the detective’s testimony, which indicated Taylor made sexual contact with

B.C. by touching her with his hand on the outside of her clothing, those acts are

separate and distinct from the elements required to prove aggravated sexual assault

as alleged in the indictments, given that at the time those acts occurred, B.C. was no

more than three or four years old.

      Moreover, even if one assumes Taylor meets the first prong under Hall, there

was no evidence adduced at trial that supports the allegation Taylor touched B.C.

with an open hand when she was seven years old. Indeed, a recorded conversation

between the detective and Taylor, admitted as State’s Exhibit 9, reveals that Taylor

specifically denied touching B.C. when she was as old as seven. While Taylor denied

                                         12
touching her with his penis, he admitted touching her with his hands with her clothes

on, but he told the detective B.C. was no older than three or four years of age when

he touched her. The “touching” would constitute separate offenses, with separate

elements, committed in a separate manner. The contact is not a lesser included

offense to aggravated sexual assaults that occurred as alleged in the indictments at

issue. See, e.g., Bottenfield, 77 S.W.3d at 358.

      We overrule Taylor’s second issue.

C. Issue Three: Unredacted Phone Call

      In issue three, Taylor complains the trial court abused its discretion by

admitting the State’s audio recording of an unredacted phone call between Taylor

and Detective Acklin, arguing that counsel’s questions on cross-examination had not

opened the door to such evidence, and the bad acts were not offered to rebut any

defensive theory. Tex. R. Evid. 404(b).

      We review a trial court’s decision to admit evidence over an objection under

an abuse of discretion standard and will not reverse its decision absent a clear abuse

of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

“The trial court does not abuse its discretion unless its determination lies outside the

zone of reasonable disagreement.” Id.



                                          13
      As a prerequisite to presenting a complaint on appeal, however, the record

must show the complaint was made to the trial court by a timely request, objection,

or motion that stated the grounds for the ruling desired from the trial court with

enough specificity to make the trial court aware of the complaint. Tex. R. App. P.

33.1(a)(1). Additionally, the complaining party must show that the trial court ruled

on the request, objection, or motion, or refused to rule and the complaining party

objected to the refusal. Tex. R. App. P. 33.1(a)(2).

      The record reveals the State moved to admit the unredacted copy of Exhibit

9, which was an audio recording of Taylor’s conversation with the detective, arguing

the defense opened the door by asking the detective questions about the Defendant’s

previous abuse. The judge ruled the State could enter Exhibit 9 without redaction,

and there was no objection by Taylor either before or after the admission of the

unredacted exhibit.

      Accordingly, we conclude Taylor failed to preserve this complaint for appeal,

and we overrule his third issue. See Tex. R. App. P. 33.1(a).

D. Issue Four: Prosecutorial Misconduct

      Taylor argues in his fourth issue that the prosecutor repeatedly engaged in

misconduct such that it undermined the fact-finding process and deprived Taylor of

fundamental fairness and due process.

                                         14
      Prosecutorial misconduct is an independent basis for objection that must be

specifically urged in order for error to be preserved. Hajjar v. State, 176 S.W.3d 554,

566 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). In order to properly preserve

error in cases of prosecutorial misconduct, an appellant must (1) object on specific

grounds, (2) request an instruction that the jury disregard the comment, and (3) move

for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see also

Tex. R. App. P. 33.1.

      Although Taylor cites multiple instances in the reporter’s record where he

asserts the State engaged in misconduct, in each of these instances Taylor failed to

object or properly preserve error. Therefore, he waived these complaints. See Tex.

R. App. P. 33.1; Penry, 903 S.W.2d at 764.

      Issue four is overruled.

E. Issue Five: Trial Court’s Response to Jury’s Questions During Deliberations

      Last, Taylor contends the trial court abused its discretion when it sent a portion

of B.C.’s testimony back to the jury, which arguably exceeded the scope of part one

of the jury’s question, and the jury failed to indicate there was a dispute over the

testimony in part two of the question. Specifically, Taylor complains about the trial

court’s response to the jury’s questions regarding B.C.’s testimony surrounding the

bathroom encounter.

                                          15
         Articles 36.27 and 36.28 of the Texas Code of Criminal Procedure govern jury

communications with the court and the reading of testimony “if the jury disagree as

to the statement of any witness[.]” Tex. Code Crim. Proc. Ann. art. 36.28 (West

2006); see also Tex. Code Crim. Proc. Ann. art. 36.27 (West 2006). When there is a

dispute, the jury may request, and the trial may read to it the portion of the testimony

or the particular point in dispute and no other. See Tex. Code Crim. Proc. Ann. art.

36.28.

         “It is well established that complaints about error in the reading of trial

testimony must be preserved by objection at the time of the reading.” Hollins v. State,

805 S.W.2d 475, 476 (Tex. Crim. App. 1991). In analyzing article 36.28, the Court

of Criminal Appeals explained “[t]he rule requires objection as soon as the error is

apparent or should be apparent[.]” Id. at 477. A timely objection is necessary in order

to give the trial judge an opportunity to cure the error. Id. at 476.

         The jury’s questions are contained in the clerk’s record, along with the portion

of testimony the trial judge sent in response. Taylor had ample opportunity to object.

See Tex. Code Crim. Proc. Ann. art. 36.27 (instructing the trial court to secure the

presence of the defendant and his counsel when answering a jury question to provide

an opportunity to object). Defense counsel was present when the judge advised what

she was sending to the jury. Id. Indeed, defense counsel inquired whether B.C.

                                            16
“[said] anything else” and asked whether “there was nothing else about being

outside[.]” Despite these inquiries, the record is devoid of any objection or complaint

by Taylor’s trial counsel to the testimony the trial judge sent in response to the jury’s

questions. In fact, contrary to Taylor’s assertion in this appeal that the trial judge

sent too much of B.C.’s testimony back to the jury, the questions asked by defense

counsel during trial indicate a desire that more information be sent in response to the

jury’s questions.

      Without a timely objection to the portion of the testimony the trial court sent

in response to the jury’s inquiries, we conclude Taylor failed to preserve this

complaint. See Tex. R. App. P. 33.1. Therefore, we overrule issue five.

                                   III. Conclusion

      Based on our analysis above, we conclude the evidence in this case was legally

sufficient to support the jury’s verdict. In light of the allegations contained in the

indictments and the testimony presented at trial, we have also determined Taylor

was not entitled to the submission of indecency by contact as a lesser included

charge. Finally, because Taylor did not timely object during trial, he failed to

preserve his complaints for appeal on issues three, four, and five. See Tex. R. App.

P. 33.1. The judgment of the trial court is affirmed.



                                           17
      AFFIRMED.


                                            ________________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on March 1, 2018
Opinion Delivered April 18, 2018
Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




                                       18
