

Opinion filed June 28,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00153-CR
                                                     _________
 
      KYLIE LORRAINE
MICHELL A/K/A KYLIE BROWN, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 35th District Court
 
                                                           Brown
County, Texas
 
                                                   Trial
Court Cause No. CR20302
 
 

 
                                                                  O
P I N I O N
            The
jury found Kylie Lorraine Michell a/k/a Kylie Brown guilty of the offense of continuous
sexual abuse of a young child or children.  The victims were her stepdaughter
and her stepson, both of whom were under the age of fourteen.  Appellant
elected to have the trial court assess her punishment, and it assessed her
punishment at imprisonment for life.  We affirm.
            Appellant
presents us with three issues on appeal.  In her first issue, she generally
argues that the evidence is insufficient to support the verdict of guilty.  In Issue
Two, she claims that the trial court erred when it admitted “the wrong outcry witness
and multiple outcry witnesses.”  In her third issue, appellant claims that the
trial court committed reversible error when it denied her request for an
instruction on lesser included offenses.
            Because
the State charged appellant with continuous sexual abuse of a child, the State
had to prove three elements: (1) the defendant “commit[ted] two or more acts of
sexual abuse” (2) “during a period that is 30 or more days in duration,” and (3)
“at the time of the commission of each of the acts of sexual abuse, the
[defendant was] 17 years of age or older and the victim [was] a child younger
than 14 years of age.”  Tex. Penal Code Ann. § 21.02(b) (West Supp. 2011).  
In her first issue, appellant maintains that the State did not meet its
burden in that it did not prove that the instances of sexual abuse took place during
a period that was thirty or more days in duration.  For that reason, she claims
that the evidence is insufficient to support the verdict of guilty.  
            Normally,
we would discuss the sufficiency of the evidence issue first.  However, a
resolution of that issue involves the issue of the appropriateness of admitting
the testimony of the alleged outcry witnesses.  We will consider the complaint directed
at outcry witnesses first.
            We
refer to the child victims in this case by the pseudonyms previously assigned
to them in the indictment: Angela Green and Adam Green.  Appellant is their stepmother. 
Their father, Cass Anova Brown, is a codefendant with appellant in this case.  The
jury convicted Cass Brown, in a joint trial with appellant, of the same offense
involved in this appeal.  Today, in a separate opinion, we also affirm Cass
Brown’s conviction.
            Angela
was eleven years old and in the fourth grade when she told a friend at school
that she was being sexually abused.  Because Angela suffered from ADHD, she and
her friend wrote down the directions for Angela to use to call the police to
report the sexual abuse.  The friend also wrote down her mother’s phone number
in case Angela needed help.  Angela telephoned the 9-1-1 dispatcher on January
7, 2009.  The State produced a CD recording of the 9-1-1 conversation, and the
trial court admitted it.  
            Amanda
Williams was the 9-1-1 dispatcher who received Angela’s call.  Williams
directed Officer Stephanie J. Morgan of the Brownwood Police Department to the
address Angela gave to Williams: 1612 Indian Creek Road in Brownwood.  When
Officer Morgan got there, Angela came out of the house.  She did not want
Officer Morgan to go inside because the house was messy.  Angela was scared and
upset, but she gave Officer Morgan basic personal information and told her
about the general nature of the reason behind the call to 9-1-1.  Officer Morgan
talked with Angela for “probably about 10 minutes.”  Adam never made any
comments to Officer Morgan about sexual abuse.
            Officer
Morgan contacted Child Protective Services.  Kimberly Cruz and Shannon Duran
responded and went to 1612 Indian Creek Road.  Angela finally allowed Officer
Morgan, Cruz, and Duran to go inside the house.  Officer Morgan described the condition
of the house to the jury: “The house inside was in general disarray.  There was
clothes in the floor, trash, dirty dishes, the kitchen was very dirty, the
bathroom as well.”  The mattresses were not covered with linens and were very
dirty.  Animals were in the house, and the house smelled of animal urine and
feces.  The house was not habitable for children.  There was no objection to
any of this testimony.  Cruz photographed the inside of the house.
            While
Officer Morgan and the others were at the house, Cass Brown arrived.  Officer
Morgan told him that Angela had accused him of touching her inappropriately and
of engaging in sexual misconduct.  He denied any illegal behavior.  He thought
that Angela might be rebelling in response to discipline imposed upon Adam and
her for stealing candy from a convenience store and for not doing their
chores.  Additionally, Cass Brown said that Angela might be referring to a time
when she was bleeding vaginally, and he used his hand to examine for the cause;
he determined it to be the result of drinking too much apple juice.  That day, CPS
removed Angela and Adam from the home.
            The
next day, January 8, 2009, Mikey Betancourt, a forensic interviewer with the
Hill Country Child Advocacy Center, interviewed Angela in depth.  Over a
hearsay objection, the trial court allowed the State to use Betancourt as the
outcry witness in the case involving Angela.  
            We
review a trial court’s decision to admit or exclude evidence for an abuse of
discretion.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). 
We will reverse the trial court’s decision only if it acted arbitrarily,
unreasonably, or without reference to any guiding rules or principles.  Id. at
380.  We will uphold the trial court’s ruling if it is within the zone of
reasonable disagreement.  Id. at 391.
            Article
38.072 of the Code of Criminal Procedure
permits outcry statements by certain victims of child abuse to be admitted
during trial, despite the hearsay rule, if the provisions of that article are
met.  See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp.
2011).  The only provision of Article 38.072 about which appellant complains is
the provision that requires that before a witness can qualify as a proper
outcry witness, the person must have been at least eighteen years old and must
have been the first person to whom the victim made statements about the
offense.  Id. § 2(3).  We note that the child must have described the
alleged offense in some discernible way and that the outcry must be more than a
general allusion to sexual abuse before a person is a proper outcry witness.  Garcia v.
State, 792 S.W.2d 88, 91 (Tex. Crim.
App. 1990); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas
1999, pet. ref’d).  There may be more than one outcry witness provided that
each one testifies about different instances.  Lopez v. State, 343
S.W.3d 137, 140 (Tex. Crim. App. 2011); Broderick v. State, 35 S.W.3d
67, 73–74 (Tex. App.—Texarkana 2000, pet. ref’d).  A trial court has broad
discretion to determine the admissibility of outcry
evidence, and we will not disturb its determination as to the proper outcry
witness absent a showing in the record that the trial court clearly abused its
discretion.  See Garcia, 792 S.W.2d at 92; Smith v.
State, 131 S.W.3d 928, 931 (Tex. App.—Eastland
2004, pet. ref’d).
            Appellant
complains that there were “several other individuals” to whom Angela made an outcry
before the interview with Betancourt, including the 9-1-1 dispatcher and
Officer Morgan.  Therefore, she says, Betancourt, the State’s outcry witness,
could not be the proper outcry witness.  For several reasons, we disagree.  
            We
have listened to the CD recording of the call from Angela to 9-1-1.  Angela
told the dispatcher, Williams, that her mom made her put her hands up in her. 
She also told Williams that her dad put his middle part up in her.
            We
have considered Officer Morgan’s testimony as well as that portion of her
incident report that is contained in the reporter’s record as a trial court’s
exhibit admitted during the voir dire examination of Officer Morgan.  Officer Morgan
reported that Angela told her that her parents “touched her in her private
areas” and that her “dad puts his male parts inside of her.”    
            We
hold that the statements that we have referred to from the 9-1-1 call and
Officer Morgan’s report are no more than general allusions to sexual abuse.  In
Sims, 12 S.W.3d at 500, the child victim’s mother testified that the
child had told her that the defendant “had touched her private parts.”  On
appeal, the court held that the trial court could have reasonably determined
that the statement by the child to her mother that the defendant “had touched
her private parts” was no more than a general allusion to sexual abuse.  “On
the other hand,” the appellate court said, “the child’s statements to [the
outcry witness] regarding how, when, and where [the defendant] touched her
clearly satisfied the statutory requirements.”  Id.; see Smith,
131 S.W.3d at 930–31 (where testimony was that defendant “had been performing
oral sex on [child] for about a year,” the testimony did not relay specific
details about charged offense of aggravated sexual assault of a child).
            Officer
Morgan’s report also contains a statement that Angela told her that appellant
made her place “her [Angela’s] hands together, lacing and folding her fingers
to make a fist.”  Appellant then made her put her hands “up inside of [appellant]
in her private area.”  However, Betancourt’s interview with Angela revealed
that this happened on more than one occasion.  As we shall see later, only
Betancourt’s testimony, as in Sims, provided “how, when, and where” this
kind of abuse was allegedly inflicted upon Angela. 
            We
think that the principle discussed in Sims is even more applicable
where, as here, the actual charge goes beyond charging some type of sexual
abuse and requires proof of the additional element that the instances of sexual
abuse extend for a period in excess of thirty days.  We hold that the
information related by Angela to either Williams or Officer Morgan does not
touch upon the detail required when a defendant is charged with continuous
sexual abuse of a young child or children.  As appellant points out to us, one
of the elements of the offense with which appellant is charged in this case,
and the one that she claims was not proven beyond a reasonable doubt, is the
time element—that the acts of sexual abuse continued for a period in excess of thirty
days.  Such information was not a part of the 9-1-1 call.  However, as we have
said and as in Sims, the statements that Angela made to Betancourt
concerned the “how, when, and where” of the offense.  Those statements had not
been made either to Williams or to Officer Morgan.  Article.
38.072 requries a description of “the offense.”  “The offense” in this case is
continuous sexual abuse of a young child or children and requires proof not
only of the sexual abuse, but also that two or more instances of it occurred
for a period of time in excess of thirty days.  Section 21.02(b).          
            We
will review Betancourt’s testimony based upon his interview with Angela in our
discussion of the next issue.  Suffice it to say here, Angela told Betancourt about
all the instances of sexual abuse by her father and by her stepmother in graphic
detail, including the detail of the instances of abuse as well as the
circumstances from which (as we shall discuss later in this opinion) the how,
when, and where relative to the sexual abuse could be determined.  The trial
court did not abuse its discretion when it allowed Betancourt to testify as the
outcry witness in this case. 
            Moreover,
Betancourt based his testimony on information gained in his interview with  
Angela.  During the trial, appellant and Cass Brown jointly offered the video
of that interview into evidence, and the trial court admitted it.  Appellant
cannot now be heard to complain of the information contained in it.  A party
may not complain on appeal of the admission of improper evidence, offered by
the other side, when that party introduced the same evidence or evidence of a
similar character.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998).  We are aware of the rule that an objecting party does not waive his
objection in those cases where a trial court has erroneously admitted evidence
and the opposing party introduces more evidence to meet, destroy, or explain it
by introducing rebutting evidence.  Id. at 719.  That is not the case
here, however.  Appellant introduced the video, which was the very basis for
Betancourt’s testimony, and the video was not offered to meet, destroy, or
explain Betancourt’s testimony.  Because she introduced the video of Angela’s
forensic interview into evidence, appellant has waived any error in the
admission of Betancourt’s testimony.  See id. at 718–19.  For all of the
above reasons, we hold that the trial court did not abuse its discretion when
it allowed Betancourt to testify as the outcry witness as far as Angela is
concerned.  Appellant’s second issue on appeal is overruled.
            Appellant
frames her first issue as a broad challenge that the evidence is insufficient
to support the jury’s verdict of guilty.  However, her arguments are more
specifically directed to the dates and times of the alleged sexual abuse.  She
generally refers to the testimony regarding the acts themselves as
“non-specific,” “vague,” and “incidents allegedly occurred.”  However, the more
specific challenge that she makes in her argument is directed at the lack of
sufficient evidence as to when the alleged acts of sexual abuse occurred—during
a period of time that is more than thirty days in duration as required by Section
21.02(b).  Appellant argues that “the State provided no specific date, but
rather relied on broad time ranges based solely on locations where the
incidents allegedly occurred.”
Under the standard of review applicable to criminal cases, the evidence
is sufficient to support a conviction if, considering all record evidence in
the light most favorable to the verdict, a factfinder rationally could have
found that each essential element of the charged offense was proven beyond a reasonable doubt.  See
Jackson v.
Virginia, 443 U.S. 307, 319 (1979);
Brooks v.
State, 323 S.W.3d 893, 912, 926 (Tex. Crim.
App. 2010).  Evidence is insufficient under this standard in four
circumstances: (1) the record contains no evidence probative of an element of
the offense; (2) the record contains a mere “modicum” of evidence probative of
an element of the offense; (3) the evidence conclusively establishes a
reasonable doubt; and (4) the acts alleged do not constitute the criminal
offense charged.  Jackson, 443 U.S. at 314, 318 n.11, 320.  If an appellate court finds the evidence
insufficient under this standard, it must reverse the judgment and enter an
order of acquittal.  See Tibbs v.
Florida, 457 U.S. 31, 41 (1982).
As we have said, to establish continuous sexual abuse of a child, the
State must prove three elements: (1) the defendant “commit[ted] two or more
acts of sexual abuse” (2) “during a period that is 30 or more days in
duration,” and (3) “at the time of the commission of each of the acts of sexual
abuse, the [defendant was] 17 years of age or older and the victim [was] a
child younger than 14 years of age.”  Section 21.02(b).  
The legislature created the offense of continuous sexual abuse of a child
in response to a need to address sexual assaults against young children who are
normally unable to identify the exact dates of the offenses when there are
ongoing acts of sexual abuse.  See Williams
v. State, 305 S.W.3d 886, 890 n.7
(Tex. App.—Texarkana 2010, no pet.) (citing Dixon v.
State, 201 S.W.3d 731, 737 (Tex. Crim. App.
2006) (Cochran, J., concurring) (“Perhaps the Texas Legislature can
address this conundrum and consider enacting a new penal statute that focuses
upon a continuing course of conduct crime—a sexually abusive relationship that
is marked by a pattern or course of conduct of various sexual acts.”)).
The primary purpose for specifying a date in an indictment is to show
that the prosecution is not barred by a statute of limitations.  See Garcia v.
State, 981 S.W.2d 683, 686 (Tex. Crim. App.
1998).  Aggravated sexual assault of a child has no period of
limitations.  Tex. Code Crim. Proc. Ann. art. 12.01(1)(B) (West
Supp. 2011); Tex. Penal Code Ann. § 22.021(a)(1)(B)
(West Supp. 2011).  Similarly, continuous
sexual abuse has no period of limitations.  Tex. Code Crim. Proc. Ann. art. 12.01(1)(D) (West Supp. 2011). 
Normally, in aggravated sexual assault of a child cases, time is not a material
element.  However, although the exact dates of the abuse need not be proven,
the offense of continuous sexual abuse of a child does require proof that there
were two or more acts of sexual abuse that occurred during a period that was
thirty or more days in duration.  See Tex. Penal Code Ann. § 21.02(d) (West Supp. 2011)
(“The jury must agree unanimously that the defendant, during a period that is
30 or more days in duration, committed two or more acts of sexual abuse.”); Williams, 305 S.W.3d at 890–91 (requiring State to
prove two acts of sexual abuse “committed over a span of thirty or more days”).
 Furthermore, “members of the jury are not required to agree unanimously on
which specific acts of sexual abuse were committed by the defendant or the exact
date when those acts were committed.”  Section 21.02(d).
While Angela could not give the specific dates when the many instances of
sexual abuse to which she referred took place, she was able to tell Betancourt
the details of where they took place, the grade she was in at school at the
time, or what the season of the year was at the time of the sexual abuse.  Some
of the instances occurred when the family lived at 902 Bailey Street in Brownwood. 
Angela gave Betancourt the details of other incidents of sexual abuse that
occurred when the family lived at 1612 Indian Creek Road in Brownwood.  She
told about another incident during the summer at a lake house on Lake
Brownwood.  She also said that the last occurrences of sexual abuse took place between
Thanksgiving and Christmas in 2008.
Records from the City of Brownwood showed that the Browns lived at 902
Bailey Street from April 2007 until December 2007.  Those same records, as well
as testimony from the owner of the house who rented it to the Browns, showed
that the Browns moved into 1612 Indian Creek Road around December 20, 2007.
Angela told Betancourt that the first instance of sexual abuse occurred
when appellant put her middle finger inside of Angela and kept going “in and
out.”  This incident took place in appellant’s room at 902 Bailey Street. 
Angela was seven or eight years old when this first act of sexual abuse
occurred.
Betancourt testified that Angela told him about a later incident that
occurred when the family was still living at 902 Bailey Street.  Sometime
around 4:00 a.m., appellant came into the room where Angela was sleeping. 
Appellant woke Angela and told her that she could not sleep and needed her to
help.  Angela protested that she needed her sleep so that she would not fall
asleep in class.  Nevertheless, appellant took Angela into appellant’s bedroom
and, after appellant put lubricant on Angela’s hands, made Angela clasp her
hands together, put them both inside appellant’s “middle area,” and move them
around in a circular motion.  It was established that the words Angela used for
“vagina” were “middle area.”  Appellant told Angela, “Make sure you ‘F-word’ me
real good and hard.”  (Angela used the term “F-word” in the interview with
Betancourt).  At some point in time, Angela took her hands out fast, washed
them, and went to bed.  Appellant woke her up and spanked her as punishment for
stopping.  This same type of sexual abuse happened again when they lived at 1612
Indian Creek Road.
During her interview with Betancourt, Angela said that Cass Brown
“sticked his middle area up in my middle area.”  It was established that
Angela’s words for “penis” were “middle area.”  That happened at more than one
location on more than one occasion.  One such incident took place when the
family had just moved into the house at 1612 Indian Creek Road.  They were
still unpacking boxes and putting up beds.  The evidence shows that this would
have been sometime around December 20, 2007.  Cass Brown told Angela that he
wanted her “to get on top of [him] now.”  This incident happened on appellant’s
bed.  Angela told Betancourt that her dad was going up and down and that it
hurt.  Her dad told her, “I’m going to ‘F-word’ you real good.”  (Again, Angela
used the term “F-word” in the interview with Betancourt).  Although she did not
tell Betancourt exactly when, she said that “it” happened again soon
thereafter.  
Angela told Betancourt about another instance when Cass Brown told her,
“Now or I am going to bust you all black and blue.”  On another occasion Cass
Brown “lubed” himself; on another, he put this “little roll-up thing on his
middle area.”  She did not know what the “roll-up thing” was called, but she
drew a picture of it as it looked rolled up and unrolled and also drew a picture
of the packaging.
Angela described another incident when that same thing happened later.  “He
made me get on top of him ‘again’ and it was upstairs” at a lake house on Lake
Brownwood.  This act of sexual abuse took place during the summer between
Angela’s third and fourth grades in school.  Brownwood Independent School
District records were admitted into evidence and showed that the summer between
Angela’s third and fourth grades was the summer of 2008.  Angela remembered
that it was summer because she was sweating.  Angela and her dad were working
on the lake house.  The lake house was a two-story house.  They either were
working upstairs when Cass Brown told Angela to take off her clothes or were
elsewhere when he told her to go upstairs and take off her clothes.  She did
not want to do that, but he told her that she had better do it.  He made her
get on top of him for a time and then on the bottom while he penetrated her “middle
area” with his “middle area.”  She was ten at the time.  She told Betancourt
that she asked her dad, “Dad, why?”
Mike Morgan owned the lake house where Angela and Cass Brown were
working.  In order to establish a time frame for the sexual abuse that occurred
at the lake house, the State elicited testimony from Morgan that he bought the lake
house on June 24, 2008, and that Cass Brown did some work on it after that. 
Both Angela and Adam had been to the lake house when Cass Brown was working on
it.  Morgan also rented the house at 1612 Indian Creek Road to the Browns, and he
verified that the family moved into that house around December 20, 2007.
While she did not give a specific date, Angela told Betancourt that her
dad had put his middle area in her mouth five or six times in the past.  She
said that he would grab her head and, demonstrating by putting her hand behind
her head, would “push her head down on it.”
Angela related to Betancourt that her dad and stepmother made her
“brother go in and out of her mom”; he went in and out of her middle area with
his middle area.  Betancourt testified that Angela told him that, although her
back was to them, “she was in the room while her brother had sex with her
mom.”  There was a video made of this incident.
Appellant made another video recording.  Betancourt noted in his
testimony that appellant was videotaping Cass Brown while he was putting his
finger inside Angela’s middle area.  Angela said that her brother, Adam, had watched
the video and had seen her screaming in it.  There were several occurrences at
various places and times during which Cass Brown put his finger inside Angela. 
One time when she was being videotaped while she was being sexually abused
digitally by Cass Brown, Angela began to bleed, and “they” told her to get a
bath.  She had to wear a “pad” and stayed home from school the next day because
she was still bleeding and the pad was full of blood; blood had also gotten on
her panties.  While Angela was in the bathtub, she yelled at her dad and
stepmother, “Would you stop that, people.”  Angela was not certain in which
residence this particular incident occurred.   
After the call to 9-1-1, Adam Green was first interviewed by Betancourt. 
Adam denied any knowledge of any kind of sexual abuse.  Adam began therapy with
Melinda Thomas, a licensed professional counselor at Taylor Clinic in
Brownwood, on April 23, 2009.  She had provided counseling to Angela since
January 29, 2009.  She stopped counseling with both of them on December 17,
presumably in 2009, when they were placed with their mother and stepfather in
Chicago.
About six months into Adam’s therapy, Thomas felt like Adam was in the
process of making an outcry about certain things.  He did make an outcry, and
as required, Thomas notified Child Protective Services.  While she did not
normally video her sessions with patients, Thomas set up a time for Adam to
come to her office so that a recording could be made of the session.  This
occurred on November 19, 2009.  The recording was admitted into evidence by
agreement and was published to the jury.
During the interview, Adam told the interviewer that, in the beginning of
the 2008 school year, he, on more than one occasion, heard Angela screaming at
night.  He had seen his sister being forced to have sex with Cass Brown and appellant. 
The first time he saw it, Cass Brown and Angela had no clothes on, and appellant
was sitting on the bed while it was happening.  Appellant was the main one who
did things to him while Cass Brown watched.  Adam used dolls to demonstrate the
positions of those engaged in the sexual abuse.
There are other instances of sexual abuse about which Angela told
Betancourt, but we believe we have detailed any number of such incidents upon
which the jury rationally could have based its verdict in this case.
            The
evidence shows that Angela was a seven- or eight-year-old child when she was
first sexually abused by appellant at 902 Bailey Street.  She was no more than ten,
if not younger, when her father began to sexually abuse her.  The evidence
shows that appellant and Cass Brown continued to sexually abuse Angela and that
they did not stop until sometime between Thanksgiving and Christmas in 2008;
Angela was eleven years old at that time.  The sexual abuse began at 902 Bailey
Street in Brownwood at least by December 20, 2007, when the family moved out of
that address.  The evidence shows that the sexual abuse continued at 1612
Indian Creek Road, at the lake house during summer 2007, and at 1612 Indian
Creek Road through the Thanksgiving season in 2008.  That is a period of time
in excess of thirty days in duration.  We have considered all the evidence in
the light most favorable to the verdict.  We hold that the jury rationally could
have found that each essential element of the charged offense was proven beyond
a reasonable doubt.  The evidence is sufficient to support appellant’s conviction,
and her first issue is overruled.
            In
appellant’s third issue, she proposes that the trial court erred when it did
not give a jury instruction on the lesser included offenses of aggravated
sexual assault of a child, indecency with a child, and sexual performance by a
child.  There is a two-pronged test to be used to determine if a lesser included
offense must be included in the jury charge when requested by a defendant.  The
first prong, whether an offense is a lesser included offense of the offense
alleged by the State, is a question of law and does not depend upon the
evidence produced at trial.  The pleadings approach is the only test to use to
determine the first part of the inquiry into whether a defendant is entitled to
a lesser-included-offense instruction.  Hall v. State, 225 S.W.3d 524,
535 (Tex. Crim. App. 2007).  The first part of the inquiry is this: Are the
elements of the lesser offense included within the proof necessary to establish
the offense charged?  If so, then we proceed 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 guilty only of the lesser offense.  Id. at
536; 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).
            Article
37.09 of the Texas Code of Criminal Procedure provides as follows:           
                        An
offense is a lesser included offense if:
            (1)
it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged;
 
            (2)
it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest
suffices to establish its commission;
 
            (3)
it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or
 
            (4)
it consists of an attempt to commit the offense charged or an otherwise
included offense.
 
Tex. Code Crim. P. Ann. art. 37.09 (West 2006).
            When
we apply that test, in accordance with the cases we have just cited, we hold
that the offenses of aggravated sexual assault of a child, indecency with a
child, and sexual performance by a child, as alleged in the indictment in the
case before us, are lesser included offenses of the offense of continuous
sexual abuse.
            We
now proceed to the second part of the test: Is there some evidence in the
record that would permit a rational jury to find that, if the defendant is
guilty, she is guilty only of the lesser offense?  Appellant argues that there
is some evidence of the lesser included offenses or else the main offense could
not have been proven.  However, that is not the complete test.  “Some evidence”
has to be such 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 a lesser included offense.  Under this record,
the lesser included offenses are not valid and rational alternatives to the
charge against appellant.  Hall, 225 S.W.3d at 535–36.  Because
we do not find error, there is no need for us to address appellant’s argument
regarding a harm analysis.  Appellant’s third issue is overruled.
            The
judgment of the trial court is affirmed.
 
 
                                                                                    JIM
R. WRIGHT
                                                                                    CHIEF
JUSTICE
 
June 28, 2012
Publish.  See
Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.

