                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS


                                                         §
    DAVID RAY CARTER,                                                      No. 08-11-00025-CR
                                                         §
                                  Appellant,                                  Appeal from the
                                                         §
    v.                                                                  78th Judicial District Court
                                                         §
    THE STATE OF TEXAS,                                                  of Wichita County, Texas
                                                         §
                                  Appellee.                                    (TC# 50,234-B)
                                                         §


                                                 OPINION

         David Ray Carter (“Appellant” or “Carter”) appeals his conviction for aggravated sexual

assault of a child under the age of six arguing that the trial court erred when it denied his request for

a jury instruction on the lesser-included offense of indecency with a child by contact.1 We affirm.

                                               BACKGROUND

         In August 2009 a child made an outcry to her aunt, H.E., that Carter put his sexual organ in

the child’s mouth.2 The next day, H.E. and other family members took the child to a child

advocacy center for a forensic interview. Following the interview, Wichita Falls Police

Department Detective R.P. contacted Carter and requested that he come to the police station for an

interview. Carter agreed to meet with the Detective and was confronted with the child’s

allegations. Carter repeatedly denied that he had put his penis in the child’s mouth, but he did

1
  This cause was transferred from the Second Court of Appeals to this Court pursuant to a docket equalization order
entered by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We have applied
precedent of the Fort Worth Court of Appeals. See TEX. R. APP. P. 41.3.
2
  At trial, the child was identified by Pseudonym Number 09-080304. We refer to her herein as “the child.” For
privacy reasons, we refer to all other individuals by their initials.
admit that the child had touched and kissed his penis. He also admitted that he was aroused by the

contact but denied that he ejaculated. Carter’s statement was recorded by Detective R.P. and was

admitted into evidence at trial.

          Carter was subsequently arrested and indicted for the offense of aggravated sexual assault

of a child under the age of six.3 Specifically, the State alleged that Carter caused the mouth of the

child to contact Carter’s sexual organ. Carter pleaded not guilty and the case proceeded to a trial.

The jury convicted Carter and sentenced him to twenty-five years in the custody of the Texas

Department of Criminal Justice, Institutional Division.4

          During the charge conference, Carter requested two lesser-included offense instructions.

One for indecency with a child by contact and one for indecency with a child by exposure. The

trial court denied both instructions.

          As noted above, Carter contends that “[t]he trial court committed reversible error when it

denied Appellant’s request to include his submitted instruction on the offense of indecency with a

child as a lesser-included offense of aggravated sexual assault.”5 The State counters that because

“there is no evidence that [Carter] is guilty only of indecency with a child by contact,” he was not

entitled to a lesser-included offense instruction.

                                            STANDARD OF REVIEW




3
    See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(v) and (2)(B) (West Supp. 2012).
4
  See TEX. PENAL CODE ANN. § 22.021(f)(1) (minimum term of 25 years if victim is younger than six years of age
at the time of the offense) (West Supp. 2012). Here, the child was five years old at the time of the offense.
5
  In his brief, Carter states that the trial court also denied his requested jury instruction as to the lesser-included offense
of indecency with a child by exposure. However, other than noting the trial court’s denial of his request for an
instruction, he makes no argument in support of this contention. The only issue raised in Appellant’s brief relates to
the trial court’s denial of his lesser-included offense instruction for the offense of indecency with a child by contact.
                                                              2
         A trial court’s decision to submit or deny an instruction on a lesser-included offense is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App.

2004). The Texas Code of Criminal Procedure provides that 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).

We utilize a two-pronged test to determine whether a charge on a lesser-included offense should be

given: (1) Is the requested charge for a lesser-included offense of the charged offense? (2) Is

there trial evidence that supports giving the instruction to the jury? Rice v. State, 333 S.W.3d 140,

144 (Tex.Crim.App. 2011); McKinney v. State, 207 S.W.3d 366, 370 (Tex.Crim.App. 2006).

         The first step is to determine whether the lesser-included offense is included within the

proof necessary to establish the offense charged. Rice, 333 S.W.3d at 144; Hall v. State, 225

S.W.3d 524, 531 (Tex.Crim.App. 2007). This is a question of law, and it does not depend on the

evidence to be produced at trial. Rice, 333 S.W.3d at 144. Texas has adopted the cognate

pleadings approach to the first step of the lesser-included offense analysis: “the elements and the

facts alleged in the charging instrument are used to find lesser-included offenses.” Rice, 333

S.W.3d at 144, quoting Hall, 225 S.W.3d at 535. The first prong is satisfied if the indictment for

the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included offense,

or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner

and means, that are alleged for purposes of providing notice) from which all of the elements of the

lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259, 273 (Tex.Crim.App.

2009).




                                                  3
       The indictment alleged that Carter intentionally or knowingly caused the mouth of the

child to contact the sexual organ of the defendant and that the child was younger than six years of

age. See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(v) and (2)(B) (West Supp. 2012). A

person commits indecency with a child by contact if, with a child younger than 17 years of age, he

engages in sexual contact with the child or causes the child to engage in sexual contact. TEX.

PENAL CODE ANN. § 21.11(a)(1) (West 2011). Indecency with a child by contact is a

lesser-included offense of aggravated sexual assault of a child where both offenses are predicated

on the same act. Evans v. State, 299 S.W.3d 138, 143 (Tex.Crim.App. 2009).

       The second step of the lesser-included-offense analysis is to determine if there is some

evidence in the record which would permit a jury to rationally find that, if the defendant is guilty,

he is guilty only of the lesser-included offense. Rice, 333 S.W.3d at145; Mathis v. State, 67

S.W.3d 918, 925 (Tex.Crim.App. 2002) (emphasis added). In other words, the evidence must

establish the lesser-included offense as a valid, rational alternative to the charged offense. Rice,

333 S.W.3d at 145; Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). If facts are

elicited during trial that raise an issue of the lesser-included offense, and the charge is properly

requested, then a charge must be given. Ross v. State, 861 S.W.2d 870, 877 (Tex.Crim.App.

1993) (op. on reh’g.).

       The essential elements of aggravated sexual assault are set forth in section

22.021(a)(1)(B)(v) of the Texas Penal Code.          A person commits an offense if the person

intentionally or knowingly causes the mouth of a child to contact the anus or sexual organ of

another person, including the actor and (2)(B) the victim is younger than 14 years of age. TEX.

PENAL CODE ANN. §§ 22.021(a)(1)(B)(v) and (2)(B). The essential elements of indecency


                                                 4
with a child by contact are found in section 21.11(a)(1). A person commits an offense if, with a

child younger than 17 years, whether the child is of the same or opposite sex, 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). Obviously, the difference between the two statutes is the aggravating

factor, specifically that the victim be younger than 14 years of age for the offense of aggravated

sexual assault.

       Here, Carter does not dispute that the child’s mouth came into contact with his penis. As a

result of that admission Carter could have been found guilty, beyond a reasonable doubt, of both

aggravated sexual assault and indecency with a child by contact. In other words, the evidence in

the case would not have permitted the jury to rationally find that, if Carter was guilty, he was guilty

only of the offense of indecency with a child by contact. See Rice, 333 S.W.3d at145; Mathis, 67

S.W.3d at 925 (emphasis added). Because Carter is unable to satisfy the second prong of the Hall

analysis, the trial court did not abuse its discretion by denying Carter’s request for a

lesser-included offense instruction on indecency with a child by contact.

       Finally, Carter also contends that because the child, rather than he caused the contact

between Carter’s penis and the child’s mouth, no rational jury could have convicted him of

aggravated sexual assault. In practical effect, Carter is arguing, without having briefed the issue,

that the evidence in the case was legally insufficient to support his conviction because he did not

cause the child’s mouth to contact his sexual organ. We are not persuaded. Carter’s sole issue is

overruled.

                                          CONCLUSION

       Having overruled Carter’s sole issue, the judgment of the trial court is affirmed.


                                                  5
December 21, 2012                             CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)




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