                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00060-CR


Leslie Schrecengost                       §   From the 158th District Court

                                          §   of Denton County (F-2010-0665-B)

v.                                        §   February 21, 2013

                                          §   Opinion by Justice Meier

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Bill Meier
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00060-CR
                            NO. 02-12-00061-CR


LESLIE SCHRECENGOST                                              APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

     Appellant Leslie Schrecengost appeals his convictions for continuous

sexual abuse of a young child and indecency with a child in cause F-2010-0665-

B and continuous sexual abuse of a young child and sexual assault in cause F-

2011-1534-B.   In two points, Appellant argues that the trial court erred by




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


                                       2
denying his motions to quash the two counts alleging continuous sexual abuse of

a young child. We will affirm.

      K.D. was born in April 1995. S.B. was born in September 1998. They

share the same mother (R.S.) but have different fathers. R.S. never married

K.D.’s father, and after divorcing S.B.’s father, R.S. married Appellant, K.D.’s and

S.B.’s stepfather. S.B. has a low IQ and is learning disabled.

      Appellant began sexually abusing K.D. when K.D. was thirteen years old.

K.D.’s first sexual encounter with Appellant occurred after the two smoked

marijuana; Appellant told K.D. that he would have to have sex with him if he

wanted more marijuana.           Between April and November 2008, Appellant

penetrated K.D.’s anus with his penis more than five times and had K.D. perform

oral sex on him. After November 2008, when the family moved to a different

address, Appellant performed anal sex on K.D. over ten more times. Appellant

told K.D. that he would kill him if he told anyone about the sexual abuse.

      Appellant also sexually abused S.B. before and after the family’s move in

November 2008. He penetrated her anus with his penis “a lot” and penetrated

her sexual organ and mouth with his penis.         Appellant also touched S.B.’s

breasts and had her masturbate him. Appellant made S.B. “pinky promise” not to

tell R.S. S.B. told K.D. about Appellant’s sexual abuse sometime during the

summer or fall of 2009 and later notified authorities at school. K.D. outcried at a

later date.




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      Count II of the indictment in cause F-2010-0665-B stated in relevant part

as follows:

      [T]hat [Appellant], during a period that was 30 days or more in
      duration, to-wit: from on or about the 1st day of October, 2007,
      through on or about the 1st day of August, 2009, and anterior to the
      presentment of this Indictment, in the County of Denton and State of
      Texas did then and there, when the defendant was 17 years of age
      or older, commit two or more acts of sexual abuse, to-wit:
      Aggravated Sexual Assault against [S.B.], a child younger tha[n] 14
      years of age[.]

Count I of the indictment in cause F-2011-1534-B stated in relevant part as

follows:

      [T]hat [Appellant] . . . during a period that was 30 days or more in
      duration, to-wit: from on or about the 22nd day of April, 2008
      through on or about the 21st of April, 2009, and [a]nterior to the
      presentment of this indictment, in the county and state aforesaid, did
      then and there commit two or more acts of sexual abuse, to-wit:
      Aggravated Sexual Assault against [K.D.], and at the time of the
      commission of each of those acts of sexual abuse, the defendant
      was at least 17 years of age, and [K.D.] was a child younger than 14
      years of age, and not the spouse of the defendant[.]

The trial court denied Appellant’s motions to quash both counts. After the jury

convicted Appellant of all four indicted offenses, Appellant pleaded true to the

enhancement allegations and the trial court sentenced him to life imprisonment

for each of the four convictions.

      In two points, Appellant argues that the trial court erred by denying his

motions to quash the continuous-sexual-abuse-of-a-young-child counts because

they failed to provide him with adequate notice of the allegations against him.

Specifically, he contends that because the State alleged that he committed



                                        4
sexual abuse against K.D. and S.B. by committing aggravated sexual assault,

and because there are a number of means by which a person may commit

aggravated sexual assault against a child as defined by penal code section

22.021(a)(1)(B), the State should have alleged with specificity “who did what to

whom.” Appellant directs us to a few cases in which the indictments involved

therein not only tracked the language of the continuous-sexual-abuse-of-a-

young-child statute but also set out the specific acts of sexual abuse allegedly

committed by the defendant, and he argues that error occurred here because the

indictments do not contain the same level of specificity. See Jacobsen v. State,

325 S.W.3d 733, 736 (Tex. App.—Austin 2010, no pet.); State v. Espinoza, No.

05-09-01260-CR, 2010 WL 2598982, at *8 (Tex. App.—Dallas June 30, 2010,

pet. ref’d) (not designated for publication).

      An accused is guaranteed the right to be informed of the nature and cause

of the accusations against him in all criminal actions. U.S. Const. amend. VI;

Tex. Const. art. I, § 10; see State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.

2004). This mandate requires that the charging instrument convey adequate

notice from which the accused may prepare his defense. Moff, 154 S.W.3d at

601. Generally, a charging instrument that tracks the language of a criminal

statute possesses sufficient specificity to provide a defendant with notice of a

charged offense.     State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App.

1996).   But when a statute defines the manner or means of commission in

several alternative ways, an indictment will fail for lack of specificity if it neglects


                                           5
to identify which of the statutory means it addresses. Id.; see State v. Barbernell,

257 S.W.3d 248, 251 (Tex. Crim. App. 2008). Nonetheless, the constitutional

requirement of sufficient notice may be satisfied by means other than the

language in the charging instrument. Smith v. State, 297 S.W.3d 260, 267 (Tex.

Crim. App. 2009), cert. denied, 130 S. Ct. 1689 (2010); Kellar v. State, 108

S.W.3d 311, 313 (Tex. Crim. App. 2003). When a motion to quash is overruled,

a defendant suffers no harm unless he did not, in fact, receive notice of the

State’s theory against which he would have to defend. Tex. Code Crim. Proc.

Ann. art. 21.19 (West 2009) (“An indictment shall not be held insufficient, nor

shall the trial, judgment or other proceedings thereon be affected, by reason of

any defect of form which does not prejudice the substantial rights of the

defendant.”). We review de novo a trial court’s ruling on a motion to quash an

indictment. See Moff, 154 S.W.3d at 601.

      A person commits continuous sexual abuse of a young child if

            (1) during a period that is 30 or more days in duration, the
      person commits two or more acts of sexual abuse, regardless of
      whether the acts of sexual abuse are committed against one or more
      victims; and

             (2) at the time of the commission of each of the acts of
      sexual abuse, the actor is 17 years of age or older and the victim is a
      child younger than 14 years of age.

Tex. Penal Code Ann. § 21.02(b) (West Supp. 2012). “[A]ct of sexual abuse”

means any act that is a violation of, among other things, aggravated sexual

assault under penal code section 22.021. Id. § 21.02(c)(4). A person commits



                                         6
aggravated sexual assault if (1) the person intentionally or knowingly (i) causes

the penetration of the anus or sexual organ of a child by any means; (ii) causes

the penetration of the mouth of a child by the sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or

sexual organ of another person, including the actor; (iv) causes the anus of a

child to contact the mouth, anus, or sexual organ of another person, including the

actor; or (v) causes the mouth of a child to contact the anus or sexual organ of

another person, including the actor; and (2) the victim is younger than fourteen

years of age.    Id. § 22.021(a)(1)(B), (a)(2)(B) (West Supp. 2012).      Thus, the

penal code identifies several alternative means of committing aggravated sexual

assault.

      Here, the indictments tracked the language of section 21.02, and the State

provided Appellant with notice of the specific acts of sexual abuse allegedly

committed by Appellant against K.D.—causing K.D.’s anus and mouth to contact

Appellant’s sexual organ—when it (1) filed a notice of K.D.’s statements pursuant

to article 38.072 and (2) noticed Appellant regarding its intent to offer evidence of

prior convictions and other crimes, wrongs, or acts.        The State additionally

provided Appellant with notice of the specific acts of sexual abuse allegedly

committed by Appellant against S.B.—causing S.B.’s sexual organ, anus, and

mouth to contact Appellant’s sexual organ—when it filed a second amended

notice of intent to offer evidence of prior convictions and other crimes, wrongs, or

acts. Accordingly, we hold that the indictments, along with the State’s pretrial


                                         7
filings detailing Appellant’s sexual abuse of K.D. and S.B., were sufficient to give

Appellant notice of the nature and cause of the accusations against him and to

allow him to prepare a defense.       See, e.g., Kellar, 108 S.W.3d at 313–14

(considering documents filed pretrial by State and holding that appellant had

constitutionally adequate notice); Choat v. State, No. 05-08-01037-CR, 2009 WL

4878979, at *2–3 (Tex. App.—Dallas Dec. 18, 2009, no pet.) (not designated for

publication) (same). We overrule Appellant’s first and second points and affirm

the trial court’s judgments.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

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

DELIVERED: February 21, 2013




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