Opinion
No. 05-07-01532-CR
Opinion Filed May 7, 2009. DO NOT PUBLISH Tex. R. App. P. 47.2(b).
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-33608-TV.
Gary A Udashen, Sorrels, Udashen, Anton, Dallas, Texas. Grace E. Shin, Assistant District Attorney, Dallas, Texas.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS. Opinion By Justice MOSELEY.
MEMORANDUM OPINION
A jury convicted Joe Edward Henderson of aggravated sexual assault of child under the age of fourteen. Henderson pled true to an enhancement allegation and the trial court assessed punishment at twenty-five years' confinement. Henderson appeals. In two issues, he argues the evidence is factually insufficient to support the conviction and the trial court erred by enhancing his punishment because the State failed to give proper notice of the enhancement allegation. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first issue, Henderson asserts the evidence is factually insufficient to support his conviction. We apply the appropriate standard of review. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means and the victim is younger than fourteen years old. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2008). As alleged in the indictment, Henderson caused the penetration of S.H.'s female sexual organ by his finger and, at the time, S.H. was younger than fourteen years of age and not his spouse. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). The record contains evidence that Henderson is the biological father of S.H. and her older brother, J.H., but was not involved in their lives for several years. Henderson lived in Oklahoma, and the children lived with their mother and her husband about forty-five miles away. In 2005, when S.H. was eight years old and her brother was ten years old, Henderson became more involved in their lives. On Friday, September 9, 2005, Henderson, his brother, and a friend took the two children on a church trip to Six Flags amusement park in Arlington. They spent the night in Irving at the home of another church member. Henderson and the children shared a bedroom; S.H. slept in the bed with Henderson and J.H. slept on the floor. S.H. wore a long shirt, shorts, and panties to bed. S.H. woke during the night to feel Henderson's hand inside her pants and his finger moving within the "crack" of her "private." Using drawings, S.H. indicated her "private" meant her female sexual organ. S.H. moved Henderson's hand away and went back to sleep. The next morning, they all went to Six Flags. S.H. acted like nothing had happened. Henderson was quiet and acted like nothing had happened. S.H. did not tell her brother what happened because she only wanted to tell her mother. They spent Saturday night at the house in Irving, but S.H.did not want to sleep with Henderson, so she slept on the floor and her brother slept in the bed with Henderson. On Sunday, they returned to Oklahoma and Henderson dropped the children off at the church. S.H. started crying and told her mother she wanted to tell her something. When S.H. got home, she told her mother about what Henderson had done to her. J.H. testified he slept on the floor the first night at the house in Irving, but S.H. slept on the floor the second night and he slept in the bed. He said Henderson was quiet on the drive back to Oklahoma on Sunday and that was unusual. J.H. felt like something was wrong, but did not know what it was. S.H.'s mother testified she picked the children up at the church on Sunday after the trip. S.H. started crying at the church, but did not say why. When they got home, S.H. said she woke up Friday night with Henderson's hand down her pants touching her private area. In a recorded statement to police, Henderson said he slept on the bed with J.H. both nights in Irving and denied the sexual assault allegations. Henderson contends the evidence is factually insufficient to support his conviction because there is no physical corroborating evidence, was no spontaneous outcry, and Henderson's brother testified that S.H. cried at the church because she did not want to leave Henderson. Henderson also argues that S.H.'s testimony that she was awakened by the abuse, raises the "alternative reasonable hypothesis that what she recalled was not reality but a lucid dream." However, physical evidence of sexual assault is not required and a conviction is supportable on the uncorroborated testimony of a child victim who makes an outcry to another person. See Tex. Code Crim. Proc. Ann. art. 38.07(a); Tear, 74 S.W.3d at 560. Further, the record contains evidence from an expert explaining that he would not expect any physical evidence from a sexual assault examination on a young girl who had been digitally penetrated. The jury was in the best position to evaluate the reason for S.H.'s crying at the church and the timing of S.H.'s outcry shortly after she returned home from the trip and was back with her mother. There is nothing in the record to show the jury was irrational in rejecting Henderson's alternative hypothesis that S.H. had merely dreamed the assault. The evidence is not so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust. See Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008). Considering all the evidence in a neutral light and in the context of a hypothetically correct jury charge authorized by the indictment, we conclude the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415; Fuller, 73 S.W.3d at 254. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex.Crim.App. 2007). We overrule Henderson's factual sufficiency issue. In his second issue, Henderson argues the trial court erred by enhancing his punishment based on an unplead enhancement allegation, to which Henderson pled true. A defendant is entitled to notice of the State's intent to use prior convictions for enhancement purposes. Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App. 1997); Mayfield v. State, 219 S.W.3d 538, 539 (Tex.App.-Texarkana 2007, no pet.). While notice must be pled in some form, "due process does not even require that the notice be given before the guilt phase begins, much less that it be given a number of days before trial." Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App. 2006); Brooks, 957 S.W.2d at 33. When a defendant has no defense to an enhancement allegation and makes no suggestion of the need for a continuance in order to prepare a defense, notice given at the beginning of the punishment phase satisfies the due process requirements of the United States Constitution as well as the Texas Constitution's due course of law requirements. Villescas, 189 S .W.3d at 294; Mayfield, 219 S.W.3d at 540. The indictment did not include the enhancement allegation. However, the clerk's record contains a document titled "Notice of Intent to Enhance Punishment Range with Prior Felony Conviction." The notice has the case caption for this cause, is signed by the assistant district attorney, and contains a certificate of service indicating it was faxed to Henderson's attorney more than ten days before trial. Although contained in the certified clerk's record, the notice does not have a file mark. At the beginning of the punishment hearing, the trial court noted that the indictment did not contain an enhancement allegation, but the State had given notice of the enhancement allegation. The trial court asked defense counsel if he had any complaints about lack of notice and counsel said he did not. Defense counsel also said he was aware the State was seeking to enhance the penalty range based on the prior conviction. Henderson pled true to the enhancement allegation. We conclude the record shows Henderson received sufficient notice of the enhancement allegation. See Villescas, 189 S.W.3d at 294. We overrule Henderson's second issue. We affirm the trial court's judgment. Dear Attorneys: Enclosed is a corrected page 1 for the above-mentioned case that was issued by the Court on May 7, 2009. Please note the following typographical error, which has been corrected: Pg.1, Opinion Filed May 7, 2009. Please replace your page 1 with the newly corrected copy.