                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00417-CR

JOHN MARCUS LEOS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2012-1350-C2


                         MEMORANDUM OPINION


      John Marcus Leos was indicted on three counts of aggravated sexual assault of a

child and three counts of indecency with a child. The State abandoned two of the

indecency with a child counts after the presentation of all of the evidence. The jury

convicted Leos of three counts of aggravated sexual assault of a child and assessed his

punishment at 99 years confinement and a $10,000.00 fine for each count. The jury

convicted Leos of one count of indecency with a child and assessed his punishment at
20 years confinement and a $10,000.00 fine. The trial court ordered the sentences to run

consecutively. We affirm.

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

conviction for aggravated sexual assault. The Court of Criminal Appeals has expressed

our standard of review of a sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

Leos v. State                                                                               Page 2
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        A defendant commits aggravated sexual assault of a child if he intentionally or

knowingly causes the penetration of the sexual organ of a child younger than fourteen

years of age by any means. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West

Supp.2013). Within the context of sexual assault, "penetration" of the female sexual

organ occurs when there is "tactile contact beneath the fold of complainant's external

genitalia." Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012). The act of

"pushing aside and reaching beneath a natural fold of skin into an area of the body not

usually exposed to view, even in nakedness, is a significant intrusion beyond mere

external contact" and constitutes penetration for purposes of a sexual assault. Cornet v.

State, 359 S.W.3d at 226. Contact that is more intrusive than contact with the outer

vaginal lips amounts to penetration of the female sexual organ. Id.

        Leos is C.P.’s step-father. Leos lived with his wife Brandy, her daughters S.P and

C.P., and his daughter A.L. C.P. testified at trial that after her mom started working

nights, Leos would come into her bedroom at night. C.P. said that Leos would get on

his knees by her bed and that he touched her private with his finger. C.P. testified that

Leos touched her private on the outside of her shorts and also inside of her panties.

C.P. described in detail how Leos touched her private. Based upon C.P.’s testimony on

pages 152 through 156 of volume 3 of the reporter’s record, a reasonable juror could

Leos v. State                                                                       Page 3
find beyond a reasonable doubt that Leos committed the offense of aggravated sexual

assault.

         Dr. Ann Sims, Medical Director for the Advocacy Center, conducted an

examination of C.P. During the examination, Dr. Sims described the female anatomy to

C.P. Dr. Sims testified at trial that C.P. described the incident with Leos to her in detail

using those terms for the female anatomy. Dr. Sims testified in detail on page 116 of

volume 3 of the reporter’s record specifically where and how C.P. stated that Leos

touched her.

         C.P. testified that Leos’s finger went in between the outer lips of her vagina

which is sufficient to constitute penetration. See Cornet v. State, 359 S.W.3d at 226. Dr.

Sims’s testimony provides further evidence of penetration. We find that the evidence is

sufficient to support the convictions for aggravated sexual assault. We overrule the first

issue.

         In the second issue, Leos argues that because the State abandoned two indecency

with a child counts, Counts 4 and 6 of the indictment, his convictions for aggravated

sexual assault of a child in Counts 3 and 5 are barred by jeopardy. In the third issue,

Leos argues that he could not be punished for both the Count 1 aggravated sexual

assault of a child charge and the Count 2 indecency with a child charge because they are

the “same offense.”      The Double Jeopardy 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 for the same offense. Ex parte

Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013).

Leos v. State                                                                         Page 4
        Indecency with a child is a lesser-included offense of aggravated sexual assault

of a child when both offenses are predicated on the same act. See Evans v. State, 299

S.W.3d 138, 143 (Tex. Crim. App. 2009).          Leos contends that because the State

abandoned the lesser offenses of indecency with a child, it was barred by jeopardy from

proceeding on the greater offense of aggravated sexual assault of a child citing Elder v.

State, 132 S.W.3d 20 (Tex.App. – Fort Worth 2004, pet. ref’d) as authority.

         In Elder, the defendant was originally indicted for the offense of indecency with

a child. After a jury was impaneled and the trial had begun, the trial court granted the

defendant a continuance due to a medical emergency. Elder v. State, 132 S.W.3d at 22.

The jury remained impaneled. On the day trial was scheduled to resume, the State

indicted the defendant for aggravated sexual assault. Id. A week later, the State moved

to dismiss the charge of indecency with a child. Id. The motion was granted, and the

jury was dismissed. Id.

        The defendant was later tried and convicted by a different jury of the offense of

aggravated sexual assault of a child. The Court found that the indecency with a child

count was a lesser included offense of the aggravated sexual assault count and that the

aggravated sexual assault conviction was barred by jeopardy. Elder v. State, 132 S.W.3d

at 24-25.

        We agree with Leos that jeopardy would bar a subsequent trial of the lesser

included offense of indecency with a child. Double jeopardy bars a second prosecution

after acquittal. Ex parte Denton, 399 S.W.3d at 545. However, double jeopardy does not

prevent a conviction of the greater offense of aggravated sexual assault of a child based

Leos v. State                                                                       Page 5
upon the abandonment of the lesser offense of indecency with a child at the same trial.

We overrule the second issue.

        Leos next argues that the Count 1 aggravated sexual assault and the Count 2

indecency with a child are the “same offense” and double jeopardy precludes multiple

punishments for the same offense. Indecency with a child is a lesser-included offense of

aggravated sexual assault of a child when both offenses are predicated on the same act.

See Evans v. State, 299 at 143. Leos contends that because the indictment alleges that

both Count 1 and Count 2 occurred on the same date, they are from the same incident.

        Long-standing precedent holds that the State is not bound by the date alleged in

the indictment as long as it proves the offense occurred within the period covered by

the applicable statute of limitations. Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App.

1998); Woodall v. State, 376 S.W.3d 134, 140 (Tex.App.-Texarkana 2012, no pet.).

        C.P. testified at trial that Leos touched her on four to five occasions. C.P. stated

that Leos would come into her room and touch her sometimes on the outside of her

clothes and sometimes underneath her panties. C.P. further testified that Leos touched

her one time in her mother’s room. There is evidence supporting a finding that Count 1

and Count 2 occurred during separate incidents.          We do not find that Leos was

punished multiple times for the same offense. We overrule the third issue.

        In the fourth issue, Leos contends that he received ineffective assistance of

counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must

meet the two-pronged test established by the U.S. Supreme Court in Strickland, Id. at

687, 104 S.Ct. 2052. and adopted by Texas two years later in Hernandez v. State, 726

Leos v. State                                                                         Page 6
S.W.2d 53, 57 (Tex.Crim.App.1986).          Appellant must show that (1) counsel's

representation fell below an objective standard of reasonableness, and (2) the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

        Unless appellant can prove both prongs, an appellate court must not find

counsel's representation to be ineffective. Id. at 687, 104 S.Ct. 2052. In order to satisfy

the first prong, appellant must prove, by a preponderance of the evidence, that trial

counsel's performance fell below an objective standard of reasonableness under the

prevailing professional norms. To prove prejudice, appellant must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.

        An appellate court must make a strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). In order for an appellate court to find that

counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the

trial record; the court must not engage in retrospective speculation.        Id. "It is not

sufficient that appellant show, with the benefit of hindsight, that his counsel's actions or

omissions during trial were merely of questionable competence." Lopez v. State, 343

S.W.2d at 142-3. When such direct evidence is not available, we will assume that

counsel had a strategy if any reasonably sound strategic motivation can be imagined.

Lopez v. State, 343 S.W.2d at 143. In making an assessment of effective assistance of

counsel, an appellate court must review the totality of the representation and the

circumstances of each case without the benefit of hindsight. Id.

Leos v. State                                                                         Page 7
        Leos complains that his trial counsel was ineffective in failing to object that

double jeopardy prevented him from being punished for both Counts 1 and 2 in the

indictment. Because we found that double jeopardy did not prevent punishment for

both counts, trial counsel was not ineffective in failing to object.

        Leos also complains that his trial counsel was ineffective in failing to object to

testimony on the truthfulness of C.P. and testimony on his guilt. An expert witness

may testify if her scientific, technical, or other specialized knowledge will assist the jury

in determining a fact issue. TEX. R. EVID. 702. However, an expert witness' testimony

must aid the jury and not supplant its determination. TEX. R. EVID. 704; Schutz v. State,

957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Expert witness testimony concerning child

sexual abuse does not aid the jury when it constitutes a direct opinion on the child

victim's truthfulness and in essence, decides an ultimate fact issue for the jury. Yount v.

State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993). Expert witness testimony should only

be admitted when it is helpful to the jury and limited to situations in which the expert's

knowledge and experience on a relevant issue are beyond that of an average juror.

Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994). Expert witness testimony

that a child victim exhibits elements or characteristics that have been empirically shown

to be common among sexually abused children is relevant and admissible under Rule

702 because it is specialized knowledge that is helpful to the jury.   Gonzales v. State, 4

S.W.3d 406, 417 (Tex.App.-Waco 1999, no pet.).

        Leos complains of several instances during the testimony of Detective Jason

Davis that he contends were improper statements on his guilt and C.P.’s truthfulness.

Leos v. State                                                                          Page 8
Several of the statements related to the procedures involved in investigating cases of

sexual assault. The statements were not a comment on Leos’s guilt, and trial counsel

was not ineffective in failing to object. Several of the complained of statements concern

characteristics common among sexually abused children.            Those statements were

admissible, and trial counsel was not ineffective in failing to object to those statements.

         When asked whether C.P. was eager to talk about the offense and why that was

important, Detective Davis responded: “When -- when a child reacts that way, when

they're not willing to speak about what's going on, it makes me believe that the offense

actually occurred.” Leos’s trial counsel did not object to the statement. Trial counsel

conducted a thorough cross-examination of Detective Davis. Trial counsel questioned

Detective Davis about his training in investigating cases involving sexual abuse of

children.       Trial counsel noted the lack of protocol in required training hours for

investigating crimes involving children. He further questioned Detective Davis on the

lack of any note in the report indicating C.P.’s demeanor at the time the offense was

reported. Leos has not shown that trial counsel’s actions were not based upon sound

trial strategy. See Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011).

         Leos complains that his trial counsel should have objected to the questioning of

Dr. Sims on whether there have been studies on what is a reliable indicator for whether

or not abuse occurred. Dr. Sim’s testimony in response to the questioning was not a

comment on C.P.’s truthfulness, but rather an explanation of common practices in her

field.




Leos v. State                                                                         Page 9
        Leos further argues that his trial counsel was ineffective in failing to object when

C.P.’s family members testified that she would have no reason to make up stories to get

them in trouble and when C.P’s sister testified that she believed C.P. We cannot say

that trial counsel’s decision on objecting to the testimony of C.P.’s family members was

not based upon sound trial strategy. Leos has not shown that he received ineffective

assistance of counsel. We overrule the fourth issue.




                                           AL SCOGGINS
                                           Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 16, 2014
Do not publish
[CR PM]




Leos v. State                                                                        Page 10
