                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-366-CR


BRENDON LEE MEDCALF                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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      Appellant Brendon Lee Medcalf appeals from his conviction for indecency

with a child by contact. In two points, he argues that his conviction is barred

by double jeopardy and that the evidence is legally insufficient to support the

jury’s verdict. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                                 Background

      The grand jury indicted Appellant for aggravated sexual assault of a child

under the age of fourteen by penetrating the complainant’s sexual organ with

his sexual organ (count one) and by contacting her sexual organ with his sexual

organ (count two) and for indecency with a child by touching her genitals

(count 3).    See Tex. Penal Code Ann. §§ 21.11(a)(1) (Vernon 2003),

22.021(a)(1), (2)(B) (Vernon Supp. 2008).      The indictment alleged that all

counts occurred “on or about” January 15, 1999.

      The complainant, A.N., is Appellant’s stepsister. She testified that on

several occasions when she was in the first and second grade and her mother

was married to Appellant’s father, Appellant woke her up, took her to his room,

and penetrated her female sexual organ with his penis. She also testified that

he touched her mouth, but she did not say with what part of his body. A.N.

further stated that when she was in the fifth grade and after her mother and

Appellant’s father had divorced, she and her sister spent the night at

Appellant’s father’s house. She testified that Appellant touched her genitals

under her clothes with his hand. A.N. said that she first reported Appellant’s

conduct to her grandmother, Nona, in 2006 when she was an eighth grader.

On cross-examination, she testified that she had also told four friends in 2005.




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She also said that she had not told the district attorney about the fifth grade

incident until four or five days before trial.

      Nona testified that in early 2006, she confronted A.N. about spending too

much time with an older boy from church. She said that A.N. broke down and

told her that Appellant used to go to her bedroom at night, take her to his room,

and “do things to her.” Nona stated that she reported A.N.’s outcry to A.N.’s

mother, Cindy, a week later. On cross-examination, Nona testified that several

months after A.N. made her initial outcry, she told Nona that “there was full

penetration.”

      Texas Ranger Joe Hutson testified that at the request of the Hood County

District Attorney’s Office, he set up a “controlled phone call” in March 2006.

He explained that he met A.N. at Nona’s house, set up telephone recording

equipment, and instructed A.N. to call Appellant in the hope of “fleshing out the

truth of the matter.”     A.N. spoke to Appellant on the phone, and Hutson

recorded the call. A few days later, Huston interviewed Appellant at his place

of employment. Again, he recorded the conversation. The State played both

recordings to the jury.     Neither A.N. nor Appellant mentioned sex in the

telephone call, and Appellant denied having done anything wrong in his

interview with Hutson.




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      Jacqueline Hess, a nurse formerly with Cook Children’s Hospital’s sexual

abuse team, testified that she interviewed and examined A.N. in March 2006.

She said that A.N. told her that when she was six or seven, Appellant put his

penis in her vagina and mouth “almost every night.”

      During deliberations on guilt/innocence, the jury notified the trial court

that it had reached a verdict on counts one and three but was deadlocked on

count two. The State moved to dismiss counts one and two, and Appellant’s

counsel agreed to the dismissal. The jury then returned a verdict of guilty on

count three, the indecency by contact count.        The jury went on to assess

punishment at ten years’ confinement, and the trial court rendered judgment

accordingly.

                                Double Jeopardy

      In his first point, Appellant argues that double jeopardy bars his conviction

for indecency with a child because the State dismissed the aggravated sexual

assault counts after jeopardy attached.

      The Double Jeopardy Clause of the United States Constitution provides

that no person shall be subjected to twice having life or limb in jeopardy for the

same offense. U.S. C ONST. AMEND. V. Generally, this clause protects against

(1) a second prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

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for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221,

2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990)

(op. on reh’g). To determine whether two offenses are the same, we must

examine the elements of the applicable statutes to determine whether each

statute “requires proof of an additional fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932);

see United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856

(1993); Parrish v. State, 869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994).

      Generally, to preserve a double jeopardy claim, a defendant must object

at or before the time the charge is submitted to the jury. Gonzalez v. State, 8

S.W.3d 640, 642 (Tex. Crim. App. 2000). An appellant is excused from the

preservation requirement, however, when (1) the undisputed facts show the

double jeopardy violation is clearly apparent on the face of the record and (2)

enforcement of usual rules of procedural default serves no legitimate state

interests. Id. at 643.

      In this case, Appellant did not raise his double jeopardy complaint in the

trial court. Therefore, we must determine whether the undisputed facts show

that the double jeopardy violation is clearly apparent on the face of the record

and whether enforcement of usual rules of procedural default serves no

legitimate state interests. See id.

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      Although this case does not involve multiple punishments, cases

analyzing double jeopardy claims in that context are instructive. We will find

a multiple-punishment double jeopardy violation “clearly apparent on the face

of the record” when the record shows multiple punishments resulting from the

commission of a single act that violated two separate penal statutes, one of

which is subsumed in the other. See Blockburger, 284 U.S. at 304, 52 S. Ct.

at 182; Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991),

cert. denied, 502 U.S. 1110 (1992).

      Indecency with a child is a lesser included offense of aggravated sexual

assault when the State uses one act to prove both offenses. See, e.g., Ochoa

v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); Cunningham v. State,

726 S.W.2d 151, 153 (Tex. Crim. App. 1987); Beltran v. State, 30 S.W.3d

532, 534 (Tex. App.—San Antonio 2000, no pet.).            For example, as we

explained in Elder v. State, indecency with a child by touching the child’s

genitals can be a lesser included offense of aggravated sexual assault of a child

by penetrating the child’s sexual organ if the same act is used to prove both the

touching and the penetration. 132 S.W .3d 20, 23 (Tex. App.—Fort Worth

2004, pet. ref’d), cert. denied, 544 U.S. 925 (2005); see also Hutchins v.

State, 992 S.W.2d 629, 632 (Tex. App.—Austin 1999, pet. ref’d, untimely

filed) (holding that indecency by exposure is a lesser included offense of

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aggravated sexual assault when the indecency charge is based on the

defendant’s exposure of his penis in the course of penetrating the victim’s

sexual organ). But when evidence supporting an indecency charge is not the

same as that supporting the prosecution for aggravated sexual assault, the

former will not be deemed to be a lesser included offense of the latter, and both

may be prosecuted without violating the double jeopardy clause. See, e.g.,

Bottenfield v. State, 77 S.W.3d 349, 358 (Tex. App.—Fort Worth 2002, pet.

ref’d), cert. denied, 539 U.S. 916 (2003) (holding evidence that showed

appellant touched victim’s sexual organ twice supported convictions for both

aggravated sexual assault and indecency); Patterson v. State, 96 S.W.3d 427,

432 (Tex. App.—Austin 2002) (holding that two separate acts of penetration

supported convictions for aggravated sexual assault by penetration and by

contact), aff'd, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004); Murray v. State,

24 S.W.3d 881, 889 (Tex. App.—Waco 2000, pet. ref’d) (holding that

defendant may be convicted of both indecency and aggravated sexual assault

when evidence indicates that defendant penetrated victim’s female sexual organ

with his fingers and touched her genitals with his tongue).

      In this case, Appellant cannot show that a double jeopardy violation is

clearly apparent from the face of the record. See Gonzalez, 8 S.W.3d at 643.

Unlike Elder, on which Appellant relies heavily, the State did not depend on a

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single act to prove the three offenses alleged in the indictment. See Elder, 132

S.W.3d at 23. A.N. testified that Appellant penetrated her female sexual organ

with his penis on several occasions when she was in the first grade and that he

touched her genitals with his hand once when she was in the fifth grade. Thus,

the indecency count was not necessarily a lesser included offense of the

aggravated sexual assault counts.       If the State had not dismissed the

aggravated sexual assault counts and the jury had convicted Appellant on all

three counts, punishment on all three counts would not violate the prohibition

against double jeopardy because the jury could have based its verdict on

separate acts. See, e.g., Patterson, 96 S.W.3d at 432. The fact that the State

dismissed the aggravated sexual assault counts, leaving only the indecency by

contact count, does not change the jeopardy analysis.

      We hold that Appellant has failed to show that a double jeopardy violation

is clearly apparent from the face of the record. See Gonzalez, 8 S.W.3d at

643. We overrule his first point.

                               Legal Sufficiency

      In his second point, Appellant challenges the legal sufficiency of the

evidence to support his conviction. When reviewing the legal sufficiency of the

evidence to support a conviction, we view all the evidence in the light most

favorable to the prosecution in order to determine whether any rational trier of

                                       8
fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).                  The

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

indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon

2005); Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006,

pet. ref’d).

      In this case, A.N.’s testimony that Appellant touched her genitals with his

hand is legally sufficient evidence to support the jury’s guilty verdict on the

indecency by contact count.

      Appellant argues that there is “literally no evidence regarding” the

indecency by contact count because the prosecutor was unaware of the

incident in which Appellant touched A.N.’s genitals when she was in the fifth

grade until four or five days before trial; thus, he argues, that incident could not

have served as the basis for count three of the indictment.

      When an indictment alleges a crime occurred “on or about” a certain date,

the State may prove an offense with a date other than the one specifically

alleged so long as the date is anterior to the presentment of the indictment and

within the statutory limitation period and the offense relied upon otherwise

meets the description of the offense contained in the indictment. Yzaguirre v.

                                         9
State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997). The grand jury returned the

indictment in this case on January 31, 2007. The offense of indecency with

a child has no limitation period. Tex. Code Crim. Proc. Ann. art. 12.01(1)(E)

(Vernon Supp. 2008). Thus, the State could prove the offense of indecency

with a child with any date before January 31, 2007, including the fifth-grade

incident about which A.N. testified.

      We overrule Appellant’s second point.

                                 Conclusion

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.

                                            PER CURIAM

PANEL: GARDNER, HOLMAN, and WALKER, JJ.

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

DELIVERED: November 13, 2008




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