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AFFIRM and MODIFY; Opinion issued January 14, 2013.




                                                                In The
                                           C!rnurt nf Appeals
                                 lf.ift}f 11listrirl nf IDe.~as at 11lallas
                                                      No. 05-11-01297-CR


                                        LARRY O'NEAL HALEY, Appellant

                                                                    v.
                                         THE STATE OF TEXAS, Appellee


                              On Appeal from the 204tb Judicial District Court
                                           Dallas County, Texas
                                   Trial Court Cause No. FOS-72800-Q


                                                           OPINION
                                 Before Justices FitzGerald. Fillmore, and Richter•
                                           Opinion By Justice Fillmore

          The trial court found Larry O'Neal Haley guilty of aggravated sexual assault of a child.

Haley pleaded true to the enhancement paragraph in the indictment. and the trial court assessed

punishment of fifteen years' imprisonment. In two points of error. Haley argues (1) the trial court

erred by denying his motion to dismiss. and (2) the evidence is insufficient to show penetration and.

therefore. he should have been charged with indecency with a child. We modify the trial court's

judgment to reflect Haley pleaded not guilty to the offense and. as modified. affirm the trial court's

judgment.



   1 The Honorable Manin E. Richter, Retin:d Justice, Court of Appeals, Fifth District of Texas at Dallas, sining by assignment.
                                            Background

       On November 2, 2005, Haley was indicted for aggravated sexual assault of a child, enhanced

by one prior conviction. Haley was arrested on December 6, 2005, and counsel was appointed to

represent him. The case was set for trial on May 8, 2006, October 2, 2006, and March 5, 2007. At

a pretrial hearing on March 1, 2007, the trial court denied Haley's request that a new attorney be

appointed to represent him. Haley pleaded guilty, and the trial court assessed punishment of fifteen

years' imprisonment.

       Haley filed a motion for new trial, contending he received ineffective assistance of counsel.

Trial counsel testified he reviewed the State's file and some documents provided by Haley relating
                                     ·-
to his mental health and substance abuse issues. However, due to statements made by Haley and

because the child's statements appeared to have remained consistent, trial counsel performed no

further investigation. On July 11,2007, the trial court granted the motion for new trial, concluding

trial counsel had performed no meaningful investigation.

       The State appealed. On May 28, 2008, this Court affirmed the trial court's ruling. The State

filed a petition for discretionary review with the Texas Court of Criminal Appeals, which was denied

on October 1, 2008. The State then filed a writ of certiorari with the United States Supreme Court,

which was denied on March 2, 2009.

       On September 8, 2009, the trial court appointed new trial counsel to represent Haley and, on

September 15, 2009, granted Haley's motion for the appointment of an investigator. On April 8,

2011, Haley filed a motion to dismiss, asserting his original trial counsel's failure to investigate the

case had "resulted in a complete lack of useful material for counsel to use in defense of the charges,

resulting in a constructive denial of counsel." Haley contended his new trial counsel had been unable

to locate witnesses or evidence that could be used to either test the complainant's credibility or to




                                                  -2-
advance a defense. Haley complained:

       counsel cannot provide an effective defense in this case, or perhaps any defense at
       all, as he has no cross-examination material to test the credibility of the State's
       witnesses and has no evidence upon which to base a defense. To require Defendant
       to stand trial under these circumstances would constitute a Due Process violation, a
       denial of Defendant's right to effective assistance of counsel and even a constructive
       denial of Defendant's Sixth Amendment right to counsel.

       Haley called Heather Sumrow Joplin, a private investigator assisting Haley, to testify at the

hearing on the motion to dismiss. Joplin testified that Haley told her "Charlotte" and "Oscar" were

at his house the night of the alleged offense. Haley did not know Charlotte's or Oscar's last name.

He also did not know their address, but provided Joplin with the cross-streets close to their house.

Joplin visited the area and questioned the neighbors, but could not locate either Charlotte or Oscar.

In her effort to locate Charlotte or Oscar, Joplin also attempted to fmd Haley's former girlfriend,

visited the Texas Department of Corrections to determine if any information was available in Haley's

personal property, conducted internet and driver's license searches, and contacted the ~stal service.

She also reviewed the State's and the trial court's files, but found no information on Charlotte or

Oscar. In Joplin's opinion, she exhausted every possible avenue to fmd these witnesses. Joplin also

unsuccessfully attempted to locate character witnesses for Haley.

       The prosecutor stated she had never heard "that somebody else was supposed to be there."

She indicated she would search her files and speak to the complainant about whether anyone else

was present in the house at the time of the alleged offense. The trial court adjourned the hearing

without ruling on the motion to dismiss.

       The case was called to trial on May 6, 2011. The prosecutor informed the trial court that the

complainant said no one else was in the house at the time of the alleged offense. Haley's attorney

argued that Haley was being forced to trial without the ability to be represented because counsel was




                                                 -3-
unable to cross-examine the State's witnesses or call witnesses to testify on Haley's behalf. The trial

court denied the motion to dismiss. Haley waived a jury and proceeded to trial before the court.

       O.G. testified P1at, when she was ten years old, Haley was a family friend. O.G. and her

mother, C.J., were at Haley's house, and O.G. saw a bubble bath set in the bathroom that she wanted.

After O.G., C.J., and Haley returned to O.G.'s house, O.G. realized she had left the bubble bath set

at Haley's house. Haley and O.G. returned to Haley's house to retrieve the set.

       There was no one in the house when O.G. and Haley arrived. O.G. went to the bathroom off

the bedroom in the back of the house to retrieve the bubble bath set. Haley followed O.G. and tried

to kiss her. Haley placed O.G. on the bed, lifted her skirt, and took off her underwear. Haley then

put his mouth on O.G.'s vagina and moved his mouth and tongue. When Haley was finished, he

asked O.G. if she had enjoyed it. O.G. shook her head "no," and Haley told her that she was "not

ready." Haley took O.G. to the store and then took her home.

        When they arrived at O.G.'s house, C.J. was leaving. O.G. believed C.J. was walking to

Haley's house because O.G. and Haley had been gone so long. C.J. and Haley went inside the house

with O.G. O.G. immediately wrote in her journal that a man who "horast [sic] me tried to have sex

with me."

        Because Haley was still at her house, O.G. went to sleep without telling C.J. what happened.

The next morning, O.G. gave the journal to her brother, J.G., andJ.G. took itto C.J. C.J. asked O.G.

whether the journal entry was true and what Haley had done. O.G. responded that he "licked" her

"area." C.J. grabbed a bat and J.G. grabbed a hammer, and they all went to Haley's house. When

Haley did not answer the door, C.J. called the police.

        C.J. testified that she and Haley "used to get high together," and she thought she could trust

him to be around her children. According to C.J ., Haley had a cologne set that she wanted. Haley




                                                  -4-
       ----   ------·-·--------~--     ------~---




and O.G. were supposed to go to the store and then to Haley's house to get the set. They were gone

a long time, and O.G. was not happy when she returned home.

        The next morning J.G woke C.J. and told her that she needed to talk to O.G. C.J. testified

O.G. told her that Haley "licked on her kitty cat" which, according to C.J ., was O.G. 's "private part."

C.J. and J.G. stormed out of the house because she was going "to kill him for doing what he did to

my baby." Haley would not answer the door to his house, and C.J. called the police.

        O.G. was taken to Children's Medical Center for a medical examination. O.G.'s medical

records reflect that she told the examiner that an adult male friend of her mother's kissed her mouth

with his tongue, licked her privates, and fondled her. At trial, O.G. stated "sex is penetration," and

Haley "didn't have sex with me."

        The trial court found Haley guilty of aggravated sexual assault of a child. Haley pleaded true

to the enhancement paragraph in the indictment, and the trial court assessed punishment of fifteen

years' imprisonment.

                                                              Speedy Trial

        In his frrsrpoint of error, Haley asserts the trial court erred by denying the motion to dismiss

because his rights to due process and a speedy trial were violated due to his inability to fmd crucial

witnesses for his defense. Haley specifically complains he was unable to locate witnesses because

(1) his original trial counsel failed to conduct any meaningful investigation, and (2) the State

engaged in a protracted appeal of the granting of the motion for new trial.

         Haley's brief focuses solely on his due process right to a speedy trial under the Sixth

Amendment to the United States constitution. See U.S. CONST. amend.                                          ve Barker v. Wingo, 401
   J
   - The Sixth Amendment provides:

         In all criminal prosecutions, the accused shall enjoy the right to a speedy and public triaL by an impartial jury of the State and




                                                                       -5-
U.S. 514,515 (1972); Klopferv. North Carolina, 386 U.S. 213,222-23 (1967) (constitutional right

to speedy trial applicable to States through Fourteenth Amendment). Generally, to preserve a

complaint for appellate review, the complaining party must make a timely request, objection, or

motion that states the grounds for the ruling sought with sufficient specificity to make the trial court

aware of the complaint, and the trial court must rule on the request, objection, or motion. TEx. R.

APP. P. 33.1 (a). "Except for complaints involving systemic (or absolute) requirements, or rights that

are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are

forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim.

App. 2004) (quoting Mendez v. State, 138_ S.W.3d 334, 342 (Tex. Crim. App. 2004)); see also

Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) ("systemic" requirements generally

concern laws affectin~ jurisdiction and whether penal statute is in compliance with Separation of

Powers Section of state constitution and "waivable only" rights include right to effective assistance

of cqunsel, right to jury trial, and right of appointed counsel to have ten days of trial preparation)

(citing Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993)). A defendant fails to

preserve a speedy trial claim for appellate review when he does not raise this claim before the trial

court and, instead, raises the argument for the ftrst time on appeal. Mulder v. State, 707 S.W.2d 908,

915 (Tex. Crim. App. 1986); see also Dunn v. State, 819 S.W.2d 510,526 (Tex. Crim. App. 1991)

(holding that because defendant raised statutory speedy trial claim before trial court, but not

constitutional speedy trial claim, and speedy trial statute was subsequently declared unconstitutional,

defendant's constitutional speedy trial claim was not preserved for appellate review); Henson v.



          district wherein lhe crime shall have been committed, which district shall have been previously ascertained by law, and to be
          infonned of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory
          process for obtaining witnesses in his favor, and to have the AssistanCe of Counsel for his defence.

U.S. CONSf. amend. VI.
State, No. 01-11-00225-CR, 2012 WL 3042303, at *6-8 (Tex. App.-Houston [1st Dist.] July 26,

2012, pet. filed); Cano v. State, 369 S.W.3d 532, 534 (Tex. App.-Amarillo, 2012, pet. ref d) (op.

on reh'g). 3

           Haley's motion to dismiss was premised solely on his inability to present a defense or to

receive effective assistance of counsel due to his original trial counsel's failure to properly

investigate the case and locate witnesses, issues not rooted in Haley's right to a speedy trial. See

U.S. CONST. amend VI (establishing right to assistance of counsel); Barker, 407 U.S. at 519 ('The

right to a speedy trial is generically different from any of the other rights enshrined in the

Constitution for the protection of the accused."); Anderson v. State, 301 S.W.3d 276, 280 (Tex.

Crim. App. 2009) ("A defendant's constitutional right to a meaningful opportunity to present a

complete defense is rooted in the Fourteenth Amendment's Due Process Clause and the Sixth

Amendment's Compulsory Process and Confrontation Clauses."). Haley did not request the case

be dismissed because he failed to receive a speedy trial, did not present evidence on a number of the

factors applicable to a speedy trial claim,4 and did not argue in the trial court that he failed to receive

a speedy trial. Because Haley failed to present his speedy trial claim to the trial court, he has failed

to preserve it for our review. We resolve Haley's first point of error against him.

                                                              In Pari Materia

           In his second point of error, Haley argues the evidence is insufficient to support the



     3 See also Wright''· State, No. 05-09-01527-CR, 2011 WL 5178298, at *I (Tex. App.-Dallas Nov. 2, 2011, no pet.) (not designated for
publication) (although defendant's motion for examining trial sought determination of whether there was probable cause to imprison defendant and
whether bail was excessive, it did not raise speedy trial complaint and, therefore, did not preserve complaint for appellate review).


     4 See Barter, 407 U.S. at 530-33 (factors to be considered in evaluating a speedy trial claim include (I) length of delay, (2) reason for delay,
(3) assenion of right, and (4) prejudice to accused); Henson, 2012 WL 3042303, at *7 (noting last three Barter factors "cannot be meanin~y
developed and properly evaluated on appeal without a hearing in the trial coun"); Cano, 369 S.W.3d at 534 (because content of Barter factors IS
"evidentiary and fact intensive," it is "logical and practical" to require speedy trial claim be ftrst presented to trial coun); Grimaldo''· State, 130
s. w .3d 450, 454 (Tex. App. -Corpus Christi 2004, no pet.) (although defendant raised speedy trial issue in trial court. claim was not preserved for
appeal because defendant failed to obtain evidentiary record from which appellate coun could apply, analyze, and balance Barter factors).




                                                                        -7-
conviction for aggravated sexual assault of a child because the evidence established only contact

between Haley's mouth and O.G.'s vagina and did not establish penetration. Haley contends he

should have been prosecuted for indecency with a child under section 21.11 of the penal code,5 rather

than for aggravated sexual assault of a child under section 22.021 of the penal code. 6 Haley asserts

the two statutes are in pari materia, and he had a right to be prosecuted under the narrower statute.

          Statutes that deal with the same general subject, have the same general purpose, or relate to

the same person, thing, or class of persons or things are considered to be in pari materia even if they

contain no reference to each other or were passed at different times or in different sessions of the

legislature. Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008) (citing Cheney v. State, 155

S.W.2d 123, 126 (Tex. Crim. App. 1988)); see also TEx. Gov'TCODEANN. § 311.026 (West 2005).

The two statutes must have been enacted with the same purpose in mind for the doctrine to apply.

Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim App. 2000). However, two statutes are not in pari

materia simply because they "might, in some situations, apply to the same conduct." Lomax v. State,

233 S.W.3d 302,312 (Tex. Crim. App. 2007).

          When a general statute and a specific statute are in pari materia and irreconcilably conflict,

due process and due course of law dictate that the defendant be prosecuted under the specific statute.

Azeez, 248 S.W.3d at 192; Mills v. State, 722 S.W.2d 411,414 (Tex. Crim. App. 1986). However,

this right may be waived if not timely raised in the trial court. See Azeez, 248 S.W.3d at 193.

          Haley did not request any relief from the trial court either through a motion to quash the




     5 As relevant to this case, a person commits the offense of indecency with a child by engaging in sexual contact with a child younger than
seventeen years of age. TEx. PENAL CODE ANN.§ 21.11(a) (West 2011 ). "Sexual contact" includes touching by a person of the genitals of a child
with intent to arouse or gratify the se;tual desire of any person. /d. § 21.11(cX I).

    6 As charged in this case, a person commits the offense of aggravated sexual assault by causing the sexual organ of a child under the age of
founeen to contaet or penettate the mouth of the person. TEx. PE:.'IALCODE ANN.§ 21.021(aXIXBXiii), (aX2XB) (West Supp. 2012.)




                                                                     -8-
indictment or a motion for new trial on the ground that sections 21.11 and 22.011 are in pari materia

and he should have been charged under section 21.11 See id. at 193 (in pari materia argument can

be preserved through motion to quash, if error is apparent on face of charging instrument, or through

motion for directed verdict or motion for new trial). Accordingly, Haley has waived any claim on

appeal that the statutes were in pari materia and he was charged under the wrong statute. See TEx.

R. APP. P. 33.1(a)(l). We resolve Haley's second point of error against him.

                                    Reformation of Judgment

       We note that the trial court's judgment recites Haley pleaded guilty to the charge in the

indictment. The record, however, shows Haley pleaded not guilty to committing the offense. On

our own motion, we modify the judgment to show appellant pleaded not guilty to the offense. See

TEx. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,27-28 (Tex. Crirn. App. 1993); Asberry v.

State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. refd).

       As modified, we affirm the trial court's judgment.



                                                         C::=:..----
                                                       ROBERT M. Fll.LMORE
                                                       JUSTICE
Do Not Publish
TEx. R. APP. P. 47

111297F.U05




                                                 -9-
                                 Qtnurt nf 1\ppeals
                       ltifth, 1ilistrid nf Wexas at 1ilallas

                                      JUDGMENT
LARRY O'NEAL HALEY, Appellant                      Appeal from the 204th Judicial District
                                                   Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-01297-CR           V.                    FOS-72800-Q).
                                                   Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                       Justices FitzGerald and Richter
                                                   participating.


        Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The section entitled "Plea to Offense" is modified to show "Not Guilty."

As modified, we AFFIRM the trial court's judgment.




Judgment entered January 14, 2013.




                                                    ROBERT M. FILLMORE
                                                    JUSTICE
