### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00629- CR

Darr yl Wins low Calvin, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-09 -05 40, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted Dar

ry l Wins low Calvin of indece ncy with a child and of attempted ag g rava ted sexual assault of a child. The jury assessed sentenc e at fiftee n y ear s and eig hteen y ear s respe ctively for these offe nses, with the sentenc es to run concur rently

. Appellant contends on appea l that the trial court err ed by ad m itting evidenc e of an extraneous offe nse, by excluding evidenc e he contends shows that the victim’s mother understate d her number of prior incar cer ations, by deny ing his motion for mistrial afte r the prosec utor made rema rks that appellant contends comment

on his failure to testify , and by overr uling his motion for direc ted verdic t on the char g e of ag g rava ted sexual assault of a child. We will affir m the judgme nt.

BACK GR OUND Appellant does not challeng e the sufficie ncy o f t h e evidence to support the jury ’s verdic t, but a revie w of key testimony provides context for the err ors alleg ed. T.B., the victim,was twelve y ear s old at the time of trial. Although T.B. was uncer tain of the exact date the incident

o ccurred, testimony tied it to the summer of 2007, at which time he was ten y ear s o l d

. T

. B. ’s mother, J ean, was in a long- term rela tionship with appellant’ s brother, Ervin Calvin. J ean and T.B.

o ft en s p en t the ni g ht with Ervin and his teena g ed children. Appellant was also stay ing at Ervin ’s house at that time. The witnesses who lived in the house at that time testified that the kids ty pically stay ed up late (until around 4 a.m.) watching television or play ing video g ames in the living room. Ervin’s daug hter ty

pically slept in her bedroom, and Ervin s lept in another bedroom that adjoined the living r oom where the incident occ urre d.

T.B. testified that, at the time of the incident, Ervin’s daug hter, appellant, and Ervin

wer e aslee p in the ir respe ctive bedrooms. T.B. testified that he was aslee p in the living room with Ervin’s son and appellant’ s son. T.B. said he was sleeping in a rocking rec liner chair and the other boy s wer e s l eeping on separ ate couche s. T.B. testified that appellant woke him up in the middle of the night and asked him to do “sexual stuff.” T.B. testified that, in c ompliance with a ppellant’s reque st, he “shook” appellant’ s penis up and down, then complied with a ppellant’s reque st tha t he turn around and pull down hi s pants and underwea r. T.B. testified that appellant pulled down h is

own pants and that appellant’ s penis touched T.B.’ s left buttock, althoug h T.B. later testified that it might have been appellant’ s hand rathe r than his penis. T.B . testified that he turne d around to tell appellant to stop, at which point appellant’ s penis brushed T.B.’ s thigh. T.B. testified that he tried to hit appellant and told a ppellant, “Ge t a

way from me.” T.B. testified that appellant whispere d to T.B. not to tell any one about what had happene d and returne d to his room. T.B. testified that nobody else woke up and that he went back to sleep. He did not tell any one what happene d rig ht awa y , but

2said that he told his mother within day s of the incident. T.B. testified that, by the time they went to

the police “about a month later,” he had forg otten what had happene d. On cross-e x amination, T.B. admitted to some exagg era tion when he rela ted the incident to a child advoca cy interviewe r. These

ex aggerations included T.B. say ing that he had y elled at and hit appellant. T.B. said that he go t

car ried a way during the interview due to the ef fec ts of a then- new hy

pera ctivity

medication. T

. B.’s mother J ean testified that T.B. told her in October 2007 about the incident afte r attending a discussion at Big Br others/B ig Sist ers about what sort of touching betwee n mentors and childre n was pe rmissible. He told her the incident had happene d three or four months earlier

. The version J ean rela ted at trial differ ed in some details from T.B.’ s testimony —for example, T.B. told her that appellant had pulled down both their pants. J ean, a cer tified nurse’ s assistant, testified that she did not take T.B. to the doctor g iven t h at there had been no penetr ation and too much time had passed for collection of useful evidenc e. She testified t hat s he had kn o wn T.B. to lie on

occa sion, but more when he was y oung er. She also tes t i fi ed t hat Ervin snores heavily and sleeps heavily with the door closed. J ean testified th at s h e h ad been incar cer ated twice for multipl e instances of

issuing bad c hecks a

nd theft by

chec k. Detec tive J acob L uria testified next, with much of the cross examination devoted to exploring the scope of his investiga tion

. L u ri a watche d as T.B. was interviewe d by Melissa Rodrigue z, the progra m direc tor and a fore nsic interviewe r at the child ab u s e p ro gram of the Hay s/Caldwell County Women’s Center. Acc ording to L uria, T.B. stated that appellant tried to “stick hi s penis in there ” an d t h at T

. B. stated that he y elled when the attempted assault occurre d. The court later play ed the videotape of Rodrigue z’s interview of T.B. L uria interviewe d appellant,

3who denied committing any crime, and the two boy s who wer e in the living room with T .B. L uria ag ree d on cross-e x amination that the two other boy s disputed essent i all y ever y aspec t of T.B.’ s repor t. One of the boy s told L uria that the three boy s never slept in the s ame room beca use T.B. annoy ed the other boy

. L uria did not persona lly interview any one else who was in the h o u s e at the time of the incident, but another office r interviewe d J ean. L uria conce ded that no witness he interviewe d supported T.B .’s ac cusation.

On the second day of trial, the State offe red testimony reg arding an alleg ed previous b ad ac t b y appellant. The S tate reca lled L uria to testify that he talked with and rece ived an ema i l from A.C., appellant’ s niece , who alleg ed that appellant eng ag ed in simil ar beh av i o r wi th her

once when she was twelve y ear s old. Now twenty -seve n y ear s old, A.C. testified that while s h e

was sleeping on the floor in a room of appellant’ s house with other children, she awak en ed to find appellant ly ing behind her, naked and swea ting, pulling close to her and rubbing his penis into her back. A.C. testified that, having then rec ently been a victim of sexual abuse, she rea liz ed what

was happening , told appellant “no,” and left the roo m . Ap p el l an t told her to be quiet and not to tell any one and went to his bedroom. Shortly there afte r, appellant and his wife emer g ed from their bedroom c lothed and A.C. re quested that he r aunt take her home, but her aunt had appe llant drive her home. I nstead of taking her to he r pare nts’ home, appellant took he r to a ceme tery
. When she asked to be taken home, appellant rea ched toward his g love compartment. A.C. tes t i fi ed t h at she

was alar med beca use she knew that appellant kept a g un in his g love compar tment. She fled the car and hid until appellant told her “F ine. I ’ll take y ou home.” When she returne d to the car , she noticed that a g un was then on the front seat. After appellant drove her home, she told her pare nts about the

4incident, but they did not repor t it to any g overnme ntal authority

. On cross-e x amination, appellant attempted to underc ut A.C.’s cre dibilit y by noting that she had acc used sever al mem bers of the family of sexual abuse without repor ting them to g overnme ntal authorities. After A.C.’s testimony , the State rested its case and reiter ated its abandonme nt of the ag g rava ted sexual assault count of the indictment that alleg ed p en et ra t i o n . The court denied appellant’ s motion for direc ted verdic t on the count of the indictment a lleg ing penile-a nal contac t. During the defe nse case , o t h er s who wer e in the house at the time of the incident disputed T.B.’ s story . Ervin testified that he w ould have a wake ned if a

ny one had sc rea

med in the living room next to his room. He also disputed T.B.’ s alleg ation of sex ual contact, testify ing that T.B. told him that T.B. stopped appellant befor e any improper contac t occur red. The other y oung er family members who w ere sleeping in the house whe n T.B. said the i ncident occ urre d all testified that T.B. h ad a bad reputa tion for truthfulness. They disputed T.B.’ s story that the three boy s

wer e aslee p in the living room at the same time. One boy testified that the living room would have been too crow ded with the three boy s and that he did not like sleeping near T.B. That witness flatly denied that the three boy s ever slept in the living room toge ther, though he had told Detec tive L uria t h at it was possible. He also testified that he had no rea son to believe that T.B. was s ex u al l y assaulted in the house. The other boy , appellant’ s son, demonstrated the logistica l difficulties with T.B.’ s version of events. None of the t eena g ers reca lled hear ing T .B. screa m in the m iddle of t he night. Ervin’s daug hter testified that appellant’ s door squeake d loudly and she did not rec all hear ing it squeak open f

ollowed by

a scr eam f

rom T.B . in the middle of the nig ht in the summer of 2007. The court’s char g e inquired about three offe nses: ag g rava ted sexual assault by contac t, the lesser included offe nse of attempted ag g rava ted sexual assault by contac t, and one count 5of indece ncy by contac t. The jury acquitted appellant of assault by conta ct , b u t convicted him of

attempted assa

ult by contac t and indece ncy

by contac t.

ANALYSIS Appellant contends on appea l that the trial court improperly admitted evidenc e of his extraneous acts, excluded docume n ta r y a n d te s ti mo n ia l e v id e n c e that a witness had been incar cer ated more times than she a dmitted, denied his motion for mistrial f or comment on his failure to testify , and over ruled his motion for direc ted ver dict on the cha rg e of a ssault by

contac t.

Adm ission of E xtraneous Off ense Evidence Appell an t co n tends that the trial court’s admission of A.C.’s testimony reg arding appellant’ s prior bad acts violated rule of evidenc e 404(b). Evidence of extraneous crimes, wrong s,

or acts is not admissib l e t o p ro v e the char acte r of a person in order to show action in confor mity with that char acte r. Tex. R. Evid. 404(b). Ev idence of extraneous offe nses can be admissible for other purposes, such as proof of motive, opp o rt u n i ty , intent, prepa ration, plan, knowledg e, identity or absenc e of mistake or acc ident. Id

. This list of permissible purposes is illustrative, not exhaustive. Daggett v. State , 187 S.W .3d 444, 451 n.13 (Tex. Crim. App. 2005). The admissibili ty of such evidenc e to show l ack of opportunity has also been interprete d to permit the admis sion of such evidenc e to show impossibi lity of the offe nse. See W heele r v. State , 67 S.W .3d 879, 887 n.21 (Tex. Crim. App. 2002). We revie w a trial court’s ruling on the admissibili ty of extraneous offe nses under an abuse of discretion st andar d. Page v . State , 137 S.W .3d 75, 78 (Tex. Crim. App. 2004). Trial courts may admit extraneous offe nse evidenc e to rebut evidenc e supporting defe nsive theories elicited in opening statements and cross-e x amination. Powell v. State , 63 S. W

. 3 d 4 3 5 , 439-40 6(Tex. Crim. App. 2001). I f the court’s ruling was corr ect on any theory of law applicable to the case ,

in light of what was befor e the trial court at the time the ruling wa s m ad e, we m u s t uphold the judgme nt. Sauceda v . State , 129 S.W .3d 116, 120 (Tex. Crim. App. 2004).

The extraneous offe nse evidenc e admitted in the trial court was admissible to rebut the defe nse’s theory that appellant had no opportunity to commit the offe nse. Appellant arg ues on appea l that lack of opportunity was not raised in this case , but we conclude that it was raised at least implicitl y by defe nse counsel and testimony

. I n his opening statement, defe nse counsel called T.B.’ s version of events “an incre dible story .” Fa cets of the story defe nse counsel descr ibed as incre dible include t h e assertion that the incident occur red with people near

by who hear d nothing. Def ense counsel elicited evidenc e consistent with this theory during cross-e x amination of T.B., setting up the proxi m i t y o f t h e o t h er boy s and Ervin and the fac t that they wer e not awa kened by the incident. A.C.’s testimony that appellant had tried to sexually assault her in a simil ar fashion in a room with other children, without awa kening any one, rebutted the defe nsive theory that the prese nce of others denied appellant the opportunity to commit the o ff en s e. See Powell , 63 S.W .3d at 438. Be cause A. C. ’ s testimony about extraneous acts was rele vant and admissible to rebut the defe nse’s theory that appellant had no opportunity to commit t h e cr i m e, t h e trial court did not abuse its discretion by admitting the e vidence over a ppellant’s rule 404(b) objec tion. 1

Appellant also objected at trial t h at t h e ev i d ence should have been ex cluded because its 1 probative value was substantially outweig hed by the risk of unfair prejudice , confusion of the issues, or misleading of the jury

. See Tex. R. Evid. 403. Although he mentions the rule 403 trial objection, he does not seem to raise the overr uling of the rule 403 objection as an issue on appea l. I n any event, we do not find that the trial court abused its discretion by overr uling the rule 403 objection beca use the probative value of

the evidenc e is not substantially outweig hed by

the risk of unfa ir prejudice , confusion of issues, or

misleading of the jury

. 7Exclusion of Impeac hm ent Evidence Appellant next contends that the trial court err ed by excluding jail rec ords and rela ted testimony showing J ean’ s criminal rec ord of convictions for crimes of moral turpitude. Appellant soug ht to impeach J ean by showing that she had committed crimes of moral turpitude. See Tex. R. Evid. 609(a)

. He made an offe r of proof of the Hay s County j ai l records and the t estimony of t he custod i an o f those rec ords. The custodian testified t hat t he records showed t hat J ean was booked

on J une 7, 2004 for what the custodian descr ibed as “[m] ultiple issuances of a bad chec k

. . . and capia s pro fines of issuance of a bad chec k, multipl es of those as well.” J ean was rele ased two day s later aft er pay ing fines on some counts. The custodian testified that J ean was ag ain booked on J anuar y 27, 2005 for “multipl e capias pro fines of issuance of a bad chec k. . . . And then she was rele ased to Gua dalupe County to be housed there on Marc h 16, 2005.

. . . [T] hen she was brought back to Hay s County on April 13th I believe fo r t h e s ame char g es and then finally time serve d them on April 1 6 t h , 2 0 0 5

. ” When appellant’ s counsel asked the custodian about when the third b ooking occur

red, the custodian responded, “That was the third.” The S tate objected t o this evidenc e on g rounds that it was cumulative of J ean’ s admission that she had been jailed twice, that it violated rule 403 (which permits exclusion of cumulative evidenc e in the proper circ umstances) , and that it was not admissible beca use t he convictions did not conce rn crimes of m o ra l t u rp itude. The trial c ourt sustained the objec tion without s tating a basis. On appe al, the par

ties focus on whether the evidenc e was a dmissibl e impeac hment evidenc e turning upon the question of whether issuing bad chec ks is a crime of moral turpitude. We need not resolve that issue, howeve r, beca use we conclude that the evidenc e was excludable

as cumulat i v e o f J ea n’s testimony admitting the offe nses. “Althoug h rele vant, evidenc e may be 8excluded if its probative value is substantially outweig hed by

. . . considerations of

. . . needle ss

prese ntation of cumulative evidenc e.” See Tex. R. Evid. 403. The jury had hea rd J ean testify that she had been jailed twice for what she ag ree d wer e a “laundr y list” of “multiple” offe nses of “thef t by chec k and issuance of [a] bad chec k.” Thus, the damag e to her cre dibilit y that appellant desired

was inflicted by her own testimony

. Th e jail rec ords wer e entirely cumulative on the issue of whether J ean had commi tted and been j ailed for sever al offens es i nvolving bad chec ks. The only substantive discrepa

ncy betwee n her testimony and the jail rec ords is whether she was jailed twice

or three times, a subject open to some interpre tation based on the evidenc e that is at most tenuously rela ted to whether appellant committed the offe nses at hand. The court did not err by excluding the 2 jail rec ords and the c ustodian’s testimony

.
Denial of Motion for Mistrial Arising Out of P rosec utor’s Ar gum ent Appellant next contends that the trial court err ed by deny ing his motion for a mistrial at the punishment phase afte r the prosec utor made statements in arg ument that appellant alleg es

The custodian of rec ords said that J ean’ s second and third bookings into Hay s County J ail 2 bookended a s t int in Guada lupe County jail. Thus, J ean (and the trial court) may plausibly have r e g a rded the continuous incar cer ation encompa ssing the second and third bookin g s in to H a y s Co u n ty jail as a single jailing. I n that case , she was “jailed” only twice, and the jail rec ords wer e cumulative of the substance of her testimony

. Even if we wer e to find that the purported discrepa ncy in number of jailings made the evidenc e non-cumulative an d j u s tified admitting the jail rec ords evidenc e to impeach J ean, we would conclude that its exclusion was harmless. To merit reve rsal, the exclusion of the evidenc e must have either deprive d him of his constitutional rig hts or aff ecte d his substantial rig hts. See Tex. R. App. P. 44.2. Erroneous e videntiary ruling s rar ely

rise to t he level of deny ing fundame ntal constitutional rig hts, see Potier v. State , 68 S.W .3d 657, 663 (Tex. Crim. App. 2002), and there is no show i n g t h at s u ch occur red here

. We further conclude based on the rec ord and arg uments befor e us that the exclusion of jail rec ords from Hay s County j ai l d i d n o t i nfluenc e t h e jury or have more than a slight eff ect. See Motilla v. State , 78 S.W .3d 352, 355 (Tex. C ri m . App. 2002). 9commen ted on his failure to testify

. Both the fede ral and state constitutions prese rve criminal

defe ndants’ rig ht not to be compelled to g ive evidenc e ag ainst themselves. U.S. Const. amend. V; Tex. Const. art. I , § 10; see also Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005) (“[T]he failure of any defe ndant t o so testify shall not be taken a s a circumstance ag ainst him, nor shall the s ame be alluded to or comme nted on by counsel in the cause .” (empha sis added) ). The court of criminal appea ls has established cr iteria for evalua ting a

comment on the rig ht ag ainst self-incr imination:

To violate the rig ht ag ainst self-inc rimination, the offe nding lang uag e must be viewed from the jury ’s standpoint and the implication that the comment ref err ed to the defe ndant’s failure to testify must be clea r. I t is not sufficie nt that the lang uag e m i gh t b e construed as an implied or indirect allusion. The test is whether th e lang uag e used was manifestly intended or was of such a char acte r that the jury would nece ssarily and naturally take it as a commen t o n t he defenda nt’s failure to testify

. I n apply ing this standard, the conte x t in which the comment was made must be analy zed to determine whe ther the la ng uag e used w as of suc h char acte r.

Bustamante v. State , 48 S.W .3d 761, 765 (Tex. Crim. App. 2001) (re viewing trial judge ’s comment

o n the failure to testify

) (notes and citations omitted). We revie w the trial court’s denial o f t h e motion for mistrial based on a prosec utor’s impermissible comment on appellant’ s failure to testify for an abuse of discretion. Archie v. State , 221 S.W .3d 695, 699 (Tex. Crim. App. 2007). We weig h three fa ctors: (1) the sever ity of the misconduct (the mag nitude of the prejudicia l eff ect of the prosec utor’s rema

rks); (2) the measure s adopted to cure the misconduct (the eff icac y of any cautionar y instruction by the judge ); and (3) the cer tainty of pu n i s h m en t absent the misconduct (the streng th of the evidenc e supporting the punishment). Id

. at 700. Only in extreme circ umstances, wh er e p rejudice is incura ble, will a mistrial be require d. Id

. at 699 (citing Hawkins v. State , 135 S.W .3d 72, 77 (Tex. Crim. App. 2004)).
10The challeng ed arg ument in this case occur red in the prosec utor’s opening arg ument afte r b o t h s i d es rested at the punishment phase. Among the witnesses in the punishment phase

was appellant’ s pastor, who testified re gar d i n g appellant’ s prog ress in the pastor’s minist ry . The pastor testified that a

ppellant had a

“re pentant hea

rt” and would benef

it f rom continuing exposure to the prog ram a t the pastor’s c hurch. This exchang e occ urre d at the outset of the State’ s opening arg ument: [P rosec utor]: A man who wa nts to repair a

nd restore his life must have a repentant hear t. And how do y ou have a repe ntant hear

t? You admit y our transg ressions. [Defense attorney ]: J udg e I ’ll object. That c omments on his right not to testify

. [P rosec utor]: Your Honor, I ’m repe ating the testimony of the pa stor. THE COURT: Over

ruled. [P rosec utor]: You admit y our transg ressions. And, y et, the defe ndant stands befor e y ou today and scolds y ou for y our ver dict. [Defense attorney ]: That’s e x actly what she’ s doing, Judge

. THE COURT: Sustained. [Defense attorney ]: She’s commenting on his right not to testify

. THE COURT: Do not ref er in that fashion. L adies and g entlemen of the jury , y ou’re instructed to disreg ard Counsel’s state ments.

The c ourt then denie d appellant’ s motion for mistrial.

The prosec utor’s comment did not cons t i t ute sever e misconduct. She did not comment direc tly on appellant’ s failure to testify , nor is there any clea r implication that the comment ref

err ed to the defe ndant’s failure to te stify

. See Bustamante , 48 S.W .3d at 765. Unlike
11in Johnson v. State , the prosecutor here did n o t ref er to what the jury had not hear d appellant say

. See 611 S.W .2d 649, 649-50 (Tex. Crim. App. 1 9 8 1 ). The prosec utor here stated that she was “re peating the pastor’s testimony .” The prosec utor’s explanation and the context indicated that the comment was not manifestly intended as a comment on the defendan t ’s fa ilure t o testify , nor was i t o f such a char acte r that the jury would nece ssarily and natura lly take it as a comm en t o n t h e defe ndant’s fa ilure to testify

. See B ustamante , 48 S.W .3d at 765. The jury had hea rd the pa stor’s testimony reg arding appellant’ s repe ntant hear t, and the prosec utor’s additio n al remark imply ing that appellant had not admitted his transg ressions was not a reve l at i on to the jurors, as they had 3 hear d his plea of not g uilty and t he entire trial, which included testimony about appellant’s denial of wrong doing.

We further hold that the court’s instruction to disreg ard the comment was eff ective. The court of criminal appea ls has hel d t h at we presume that judicial admonishments to the j u ry ar e ef

fica cious. Bauder v. State , 921 S.W .2d 696, 698 (Tex. Crim. App. 1996), overruled

on other grou nds by Ex parte Lewis , 219 S.W .3d 335, 371 (Tex. Crim. App. 2007) (conc erning double jeopar dy

). Only when it is appar ent t h at an objectionable event at trial is so emotionally inflammatory that cura tive instructions are not likely to preve nt the j ury being unfairly prejudice d against the defe ndant may a motion for mistrial be g rante d. Id

. The court of criminal appe al s observe d that the “presum p t i on that an ins truction [t o disreg ard] g ener ally will not cure comment

on failure of t he accuse d to testify . . . has bee n erode d to the point that it applies onl y to the m ost blatant exam p l es . Ot h er wi se, the Court has tended to find the instruction to have forc e.” Moore

The prose cutor ne ver state d direc tly that appellant ha d not admitted his transg ressions. 3 12v. State , 999 S.W .2d 385, 405 (Tex. Crim. App. 1999) (quoting Dinkins v. State , 894 S.W .2d 330,

356 (Tex. Crim. App. 1995)). Given the mildness of any violation of appellant’ s rig ht not to testify and the absenc e of evidenc e of any indication that the arg ument had a neg ative eff ect on appellant,

we conclude that the trial court’s succinc t, g lobal direc tive to disreg ard co u n s el ’s statements was sufficie ntly

eff ective. We further hold that the misconduct did not aff ect appellant’ s sentenc e. Despite the inconsistencies in T.B.’ s versions of events, the attacks on his and his mother’s cre dibilit y , and the denials that the incident o cc urre d by other family members, the jury had alre ady found appellant g uilty of indece ncy with a child and attempted ag g rava ted sexual assault befor e the prosec utor made the arg ument. The arg ument did not occur until the end of the punishment phase. The punishment assessed was on the high en d o f t h e range of punishment, but below the twenty -y ear maxi mum permitted under

the cha rg e. We conc lude that a pr osecutor’ s comment afte r the c lose of evide nce at t h e punishment phase that appellant had not admitted his transg ressions—a comment the jur y

wa s instructed to disreg ard—ha d no discernible eff ect on the punishment. We conclude that the trial court did not abuse its discretion by deny ing the motion for mistrial.

Denial of Motion for Direc ted Ve rdict Appellant also contends that the trial court err ed by overr uling his motio n fo r a direc ted ver dict on count two of the indictment f or ag g rava ted sexual a ssault of a child by causing his penis to contac t T.B.’ s anus. Appellant’s arg ument is unusual in that he perc eives harm not from the denial itself but from an alleg ed collater al ef fe ct of the denial. Appellant moved for direc ted verdic t on g rounds that no evidenc e support ed t he indictment’s alleg ation that his penis touched
13T.B.’ s anus. Appellant c orre ctly notes that the err or, if any , in deny ing the motion and submit ting

the ag g rava

ted sexual assault question to the jury was rende red mo o t wi t h re g ard to the assault char g e itself when t h e j u ry acquitted him on that count. Appellant contends, howeve r, that the denial of the motion for direc ted verdic t harme d him beca use the trial court submitt ed an d t h e jury convicted him on the lesser i ncluded offense of attempted contac t. He contends that, had the trial court proper ly g rante d his motion with reg ard to the g rea ter offe nse, it could not have submitt ed the lesser included off

ense to the jury

. We disag ree . The code of criminal proce dure expressly pro v i d es that “[i] n a prosec ution for an offe nse with lesser included offe nses, the jury may find the defe ndant not g uilty of the g rea ter offe nse, but g uilty of any lesser included offe nse.” Tex. Code Crim. Proc. Ann. art. 37.08 (West 2006). The court of criminal appea ls has noted that a prosec utor has the option of abandoning

a ch ar ged o ffense in favor of its lesser included offe nse. Grey v. State , 298 S.W .3d 644, 65 1 (Tex. Cri m . Ap p . 2 0 0 9 ). Appellant cites no authority for the proposition that a direc ted verdic t ag ainst the gre ater offe nse precludes submi ssion or conviction of a lesser inc luded offe nse. I f t he prosec utor can abandon the g rea ter offe nse and pursue the lesser included offe nse, we see no rea son that the g rant of a direc ted verdic t ag ainst the g rea ter o ff en s e wo uld prec lude submissi on or conviction of the l esser included offense. The assault by contac t char g e undis putedly has a lesser included offe nse of attempt. T.B.’ s testimony supported submissi on to the jury of the lesser included offe nse of attempted ag g rava ted sexual assault. Even if the trial co u rt h ad g rante d the direc ted verdic t on the offe nse char g ed, the State could have reque sted and the t ri al co u rt could have

s u bmitted a char g e on the lesser included offe nse. As such, any err or in the failure to gra n t t h e

14direc ted verdic t did not make the submissi on of the lesser included offe nse err oneous. Appellant has

not shown that the failure to gr ant the dire cted ve rdict on the g rea ter off ense ha rmed him.

CONCLUSION Having resolved a ll issues raised on appe al in favor of the judg ment, we a ffirm.

J eff Rose, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Apr il 21, 2011 Do Not Publish

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