NO. 07-11-0235-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JUNE 8, 2012

JERREMIE JASON WILLIS, Appellant v. THE STATE OF TEXAS, Appellee

__________________ ___________ FROM THE 251ST DISTRICT CO URT OF RANDALL COUNTY; NO. 21,278-C; HONORABLE ANA ESTEVEZ, PRESIDING

Memorandum Opinion

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ. Appellant Jerremie Jason Willis was conv icted of continuous sexual abuse of a child and aggravated se xual assault of a child and s entenced to twenty-five years imprisonment for each offense. He now contends the trial c ourt erred in 1) failing to instruct the jury on aggravated sexual assault as being a lesser-included offense to continuous sexual abuse, and 2) cumulating his sentences. We affirm the judgments.2 Background After his divorce in January 2008, appe llant had primary custody of his two daughters, S.G., who was nine years old, and H.W., who was seven years old. Soon after, he began to have vaginal , oral, and anal sexual rela tions with S.G. over a twoyear period. 1 At some point, he also had vaginal intercourse with H.W. After two years, S.G. made an outcry to her mother and grandmother. Issue 1 – Instruction on Lesser Offense Appellant requested that the trial court inform the jury about the possibility of finding him guilty of aggravat ed sexual assault as a lesser-included offense to continuous sexual abuse. The request wa s denied. That decision was purportedly wrong because aggravated sexual assault should always be submitted as a lesser offense when one is being tried for continous se xual abuse. We overrule the issue. A person is entitled to a charge on a lesse r-included offense if 1) the elements of the lesser offense are included within the proof necessary to es tablish the greater offense, and 2) some evidence appears of record t hat would permit a jury to rationally conclude that if appellant is guilty of anything, it is only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Furthermore, the “some evidence” alluded to is not satisfied when the defendant simply denies the commission of any crime. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). Here, appellant did just that, he def ended himself by indicating he committed no offense. For instance, he attacked the credibility of the complaining witnesses, the forensic

1 The sexual assault nurse examiner testified that S.G. had wearing down of her hymen consistent with repeated long-term penetration.3 interviewer, and the sexual assault nurse ex aminer. He also suggested that another male in the house, who had access to the ch ildren, committed the assaults. Given the nature of his defense and his failure to cite us to any evidence suggesting that his assaults against his daughter were not continuous or multip le, he was not entitled to the requested instruction. Issue 2 – Cumulation of Sentences In his next and last issue, appellant argues that t he portion of the judgment cumulating his two sentences should be removed. This is purportedly so because the trial court did not specify, when pronouncing sentence in open court, which sentence would run first. We overrule the issue. The two offenses at issue were char ged via the same indictment and tried together. After the guilty verdicts were re turned and the punishment derived by the jury, the trial court expressly prono unced appellant’s guilt and sent ence applicable to count one first. Then it pronounced guil t and the sentence applicable to count two. And, upon hearing argument regarding whether to stack the sentences , it orally pronounced that the State’s motion to so stack them wa s granted and that t he sentences would be cumulative. Those circumstances were akin to the ones in Madrigal-Rodriguez v. State , 749 S.W.2d 576 (Tex. App.–Cor pus Christi 1988, pet. ref’d) and deemed a legally sufficient pronouncement of the court’s in tent to cumulate the sentences. Id. at 580. But, unlike the situation in Madrigal-Rodriquez , we need not reform the judgment here to reflect the trial court’s intent. The la tter was already incorporated into the pertinent decree.4 Having overruled each iss ue, we affirm the judgment.

Brian Quinn Chief Justice Do not publish.