Summary
In Proctor v. State, 356 S.W.3d 681 (Tex. App.—Eastland 2011, pet. ref'd), the court rejected a similar argument, where the appellant acknowledged the existence of the exception but asserted, "There is nothing within the record which shows the applicability of the exception."
Summary of this case from Davidson v. StateOpinion
No. 11–09–00327–CR.
2012-03-7
Jon Paul PROCTOR, Appellant, v. STATE of Texas, Appellee.
David L. Botsford, Botsford & Roark, Austin, for appellant. Hardy L. Wilkerson, Dist. Atty., Robin D. Orr, Assistant Dist. Atty., Big Spring, for appellee.
David L. Botsford, Botsford & Roark, Austin, for appellant. Hardy L. Wilkerson, Dist. Atty., Robin D. Orr, Assistant Dist. Atty., Big Spring, for appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and KALENAK, J.
OPINION
JIM R. WRIGHT, Chief Justice.
The State charged Jon Paul Proctor by indictment with two counts of aggravated sexual assault of a child, a first-degree felony. Tex. Penal Code Ann. § 22.021 (Vernon 2011). In Count One, the State alleged that Proctor intentionally or knowingly caused the penetration of the sexual organ of K.T. with his tongue. In Count Two, the State alleged that Proctor intentionally or knowingly caused K.T.'s mouth to contact his sexual organ. The jury acquitted Proctor of the offense charged in Count One of the indictment and convicted him of the first-degree felony offense charged in Count Two. The jury assessed his punishment at forty-five years in the Institutional Division of the Texas Department of Criminal Justice. Proctor asserts in two issues that (1) the trial court erred in failing to grant his motion to suppress evidence and (2) the evidence is factually insufficient to support the conviction. We affirm.
We will first address Proctor's challenge to the sufficiency of the evidence to support his conviction. We note at the outset of our analysis that the Texas Court of Criminal Appeals has now held in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010), that there is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis