Opinion
No. 05-10-01032-CR
12-21-2011
KENNETH R. HETCHLER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed December 21, 2011.
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-01485-W
OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
A jury convicted appellant Kenneth R. Hetchler of aggravated sexual assault of a child less than fourteen years of age and sentenced appellant to thirty years in prison. In two issues on appeal appellant argues that (1) the trial court erred when it did not instruct the jury on the lesser-included offense of indecency with a child, and (2) the evidence is insufficient to support the conviction. We resolve appellant's issues against him and affirm.
Background
Appellant was indicted for the aggravated sexual assault of his girlfriend's daughter, K.S., who was four years old on the date alleged in the indictment. The indictment alleged that appellant intentionally and knowingly contacted and penetrated K.S.'s sexual organ with appellant's sexual organ. Appellant pleaded not guilty and his case was tried to a jury.
The State's Evidence
The State's witnesses included K.S., her mother, her therapist, and the police sergeant who investigated the crime. K.S. was nineteen years old at the time of appellant's trial. K.S. testified that she and her mother lived with appellant for about two years starting when she was approximately four years old. During that time, when K.S.'s mother was at work, appellant initially pulled K.S. close to him and told her he loved her. The sexual abuse progressed from there. Appellant began rubbing K.S.'s arms and feeling her body. He later brought her into his bedroom and asked her to take off her clothes so that he could look at her and touch himself. Appellant also started inserting his finger into K.S.'s “private parts” “a lot.” It hurt, and she would cry. Appellant also had K.S. touch his penis with her hand and put his penis in her mouth. K.S. also testified that appellant repeatedly contacted her sexual organ with his sexual organ:
Everything basically happened in the bedroom. I was on the bed, and we were both naked. And he tried to insert it in there a lot. It's just-I was-it wouldn't-it wouldn't go all the way in, and it hurt.
. . .
It felt like knives were stabbing me. It felt like the worst pain I've ever felt in my life.
The abuse stopped when K.S. was six years old because she and her mother left and moved into a shelter for battered women. After that, K.S. moved with her mother several more times and changed schools frequently. K.S. did not tell anyone about the sexual abuse, and did not report it to the police, until she was thirteen or fourteen years old.
Appellant's Evidence
Appellant testified in his own defense and repeatedly denied that he ever sexually abused K.S. Appellant's sister and a family friend also testified that they knew K.S. when she was living with appellant, and that she appeared to be comfortable around appellant.
The Verdict
The jury found appellant guilty of aggravated sexual assault as alleged in the indictment. After appellant pleaded true to an enhancement paragraph, the jury assessed punishment at thirty years in prison.
First Issue
In his first issue appellant argues that the trial court abused its discretion by not sua sponte providing the jury with an instruction on the lesser-included offense of indecency with a child. Appellant acknowledges that neither he nor the State asked the trial court to instruct the jury on any lesser-included offenses, and that a trial court has no duty to sua sponte instruct on lesser included offenses. See Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010); Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007). But relying on the concurring opinions in Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009), appellant argues that “[t]here is authority which supports the premise that a trial court has discretion to provide a jury with a lesser included offense instruction absent a request for such an instruction.” In response, the State argues that appellant waived his right to complain about the lack of an instruction on the lesser-included offense of indecency with a child by not requesting the instruction. We agree with the State.
“A lesser-included offense is not generally considered to be 'law applicable to the case,' and therefore, a party's failure to request its inclusion in the jury charge is not considered charge error but, rather, waives the party's ability to raise the issue on appeal.” Winslow v. State, No.05-10-00883-CR, 2011 WL 5223126, at *3 (Tex. App.-Dallas Nov. 3, 2011, no pet.) (not designated for publication) (citing Tolbert, 306 S.W.3d at 780-81). In this case appellant acknowledges that he did not request a lesser-included-offense instruction. As a result, we conclude that appellant has waived his complaint on appeal. See, e.g., Jefferson v. State, No.05-08-00943-CR, 2010 WL 2574202, at *13 (Tex. App.-Dallas June 29, 2010, pet. ref'd) (not designated for publication) (appellant waived complaint about lack of lesser-included-offense instruction because appellant did not make a timely, specific request for the inclusion of the instruction in the trial court and did not object to the trial court's jury charge on that basis).
We resolve appellant's first issue against him.
Second Issue
In his second issue appellant argues that the evidence is legally insufficient to support his conviction.
Standard of Review
When we review a challenge to the legal sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
We measure the sufficiency of the evidence against a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. (quoting Malik, 953 S.W.2d at 240).
Analysis
Under a hypothetically correct jury charge, the State was required to prove that appellant intentionally or knowingly caused the contact or penetration of K.S.'s sexual organ with his sexual organ when K.S. was younger than fourteen years of age. See Tex. Penal Code Ann.§22.021(a)(1)(B)(i), (a)(2)(B) (West 2011).
On appeal, appellant acknowledges that the testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. See Tex.Code Crim. Proc. Ann. art. 38.07 (West 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). But he argues that in this case, the State's evidence, including K.S.'s testimony, was legally insufficient to prove the element of contact or penetration because (1) “there was a delayed outcry,” (2)appellant's trial did not occur until almost five years after K.S. reported the crime to police, and (3)other witnesses testified that they “never saw anything inappropriate” occur between appellant and K.S. We disagree. K.S. testified unequivocally that appellant repeatedly contacted K.S.'s sexual organ with his sexual organ “but it wouldn't go in all the way.” Although appellant denied sexually abusing K.S., and other witnesses testified that K.S. appeared to be comfortable around appellant, it was the sole province of the jury to resolve any conflicts in the evidence. See Schmidt v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007) (“It is the sole province of the jury to weigh the credibility of the witnesses and testimony.”); see also Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (jury may believe or disbelieve all or part of any witness's testimony).
Having reviewed all of the evidence under the appropriate standard of review, we conclude that the evidence is sufficient to support appellant's conviction.
We resolve appellant's second issue against him.
Conclusion
We resolve appellant's two issues against him and affirm the trial court's judgment.
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101032F.U05