Opinion
No. 10-03-00335-CR
Opinion Delivered and Filed October 13, 2004. DO NOT PUBLISH.
Appeal from the 291st District Court Dallas County, Texas, Trial Court # F02-43008-JU Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is an appeal of a conviction for aggravated sexual assault. We will affirm. In his first issue, Appellant contends that the evidence was legally insufficient. The victim testified that she awakened when Appellant penetrated her vagina with his finger. Considering all the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Appellant intentionally or knowingly assaulted the victim. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App. 2002). We overrule Appellant's first issue. In his second issue, Appellant contends that the trial court sentenced Appellant without ordering a presentence investigation. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d); art. 42.12, § 9 (Vernon Supp. 2004). Appellant failed to preserve this complaint. See TEX. R. APP. P. 33.1(a); Idowu v. State, 73 S.W.3d 918, 921 n. 9 (Tex.Crim.App. 2002) (citing Oldham v. State, 5 S.W.3d 840, 847 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd)). We overrule Appellant's second issue. Having overruled Appellant's issues, we affirm the judgment. (Justice Vance concurs with a note. I believe we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions such as this, particularly in a case involving a thirty year sentence. The majority opinion points only to testimony supporting the verdict and summarily affirms the judgment. I concur in the result, but note additional facts upon which Hall makes his legal insufficiency argument. The victim, who was nine years old at the time of the assault, testified that she went into the living room, after having a nightmare, to sleep with Hall on the couch. In Hall's written statement to the police, he admitted that he woke up to find his hand on the outside of the victim's underwear, that he quickly removed his hand, and that he did not knowingly assault her. Hall also argues that there was no testimony that he was awake at the time of the assault. However, considering all of the evidence in the light most favorable to the verdict, the evidence is legally sufficient. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)).