COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-303-CR

LEON OTIS COLLINS JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

A jury convicted Appellant Leon Otis Collins, Jr. of two counts of sexual 

assault of a child and one count of prohibited sexual conduct and assessed his 

punishment at twenty years‘ confinement for each sexual assault count and ten 

years‘ confinement for the prohibited sexual conduct count. The trial court 

sentenced Collins accordingly, ordering that the sentences for the sexual assault 

 

1See Tex. R. App. P. 47.4.
2

counts run consecutively. In four points, Collins argues that the evidence is 

legally and factually insufficient to support his convictions and that he was denied 

his state and federal constitutional protections against double jeopardy. We will 

affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Chancel Nash was born on November 10, 1985.2 She was approximately 

five years old when her mother, Dionne, first met Collins. Dionne and Collins

married when Chancel was nine years old, and the family, including Chancel‘s 

two brothers, moved from Tyler to Fort Worth.

Collins began making suggestive comments to Chancel when she was 

nine or ten years old.3 Chancel reported the comments to Dionne and a pastor, 

but they responded that she had probably misunderstood Collins‘s statements. 

After some time, Collins continued making suggestive comments to Chancel and 

also began making physical contact with her.4

 

2Chancel was twenty-three years old at the time of trial.

3According to Chancel, ―[Collins] started making comments toward me, 

like,  ̳Can you take a bath,‘ or,  ̳What you doing,‘ or if he knew that I was 

undressing, he would open the door.‖

4Chancel testified, ―Like I would walk by him too close, he would touch me 

on my behind, or he would like grab my arm to get me to stand by him or - - and 

just the comments.‖
3

The contact escalated to sexual intercourse on a regular basis when

Chancel was thirteen or fourteen years old.5 Chancel became pregnant for the 

first time at age thirteen. She testified that she was not having sexual intercourse 

with anyone but Collins at that time and that she ended the pregnancy with an 

abortion. Collins resumed having sex with her after she recovered.

6

Chancel became pregnant a second time while she was attending junior 

high. She testified that she was sexually active with other boys at the time, that 

she did not know who the father was, and that she had another abortion.

She became pregnant a third time at age sixteen. She testified that Collins 

was the father and that she again had an abortion.

At age seventeen, Chancel became pregnant a fourth time. She carried 

the baby, C.M., to term because she was told that she would not be able to have 

any more children if she continued having abortions.7 Chancel thought that her 

boyfriend, Floyd, was C.M.‘s father, but she also thought that Collins could be the 

father. A paternity test confirmed that Collins is C.M.‘s father.8

 

5Chancel testified that when Collins first began having sex with her, he told 

her that he had to ―check‖ her for a disease by using his penis to ―check‖ her 

vagina. Afterward, Collins claimed that by her having sex with him, he had 

removed the disease from her.

6Chancel testified that the sexual intercourse would occur when her mother 

was at work and when her brothers were upstairs or outside.

7C.M. was born on June 4, 2004.

8

The DNA test excluded 99.9995% of the population from being C.M.‘s 

biological father.
4

Collins continued having sex with Chancel soon after she gave birth to 

C.M., and she became pregnant a fifth time and had another abortion.

Chancel reported what Collins had done to her the last time that she had 

an abortion, but she never heard anything about any ensuing investigation. 

Later, Chancel‘s boyfriend, Willie, encouraged her to report Collins‘s conduct to 

the police, which she did.

Chancel testified that over the course of all the sexual assaults, she tried to 

fight Collins off on only one occasion. She stated that her mother and Collins 

had made the decisions where she would have the abortions and that they paid 

for them. Chancel testified that she lied to the clinics about the abuse and that 

she would tell them that it was her first or second time to have an abortion. She

told her friend, Kendra, about Collins‘s conduct, and she stated that Dionne also 

knew about it. She did not deny that she had sex with other boys when she was 

a teenager.

The jury convicted Collins of two counts of sexual assault of a child (counts 

three and four) and one count of prohibited sexual conduct (count five) but 

acquitted him of aggravated sexual assault (count one) and one count of sexual 

assault of a child (count two). Collins appeals.
5

III. EVIDENTIARY SUFFICIENCY

In his first, second, and third points, Collins argues that the evidence is

insufficient to support his convictions for sexual assault of a child and for 

prohibited sexual conduct.9

A. Standards of Review

In reviewing the legal sufficiency of the evidence to support a conviction, 

we view all of the evidence in the light most favorable to the prosecution in order 

to determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 

(Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact to 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. 

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the 

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), 

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency 

review, we may not re-evaluate the weight and credibility of the evidence and 

 

9Collins does not specifically identify whether he is raising a legal and 

factual sufficiency challenge or only a factual sufficiency challenge. We will 

liberally construe Collins‘s argument as raising both a legal and factual 

sufficiency challenge.
6

substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 

735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).

When reviewing the factual sufficiency of the evidence to support a 

conviction, we view all the evidence in a neutral light, favoring neither party. 

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. 

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the 

evidence supporting the conviction, although legally sufficient, is nevertheless so 

weak that the factfinder‘s determination is clearly wrong and manifestly unjust or 

whether conflicting evidence so greatly outweighs the evidence supporting the 

conviction that the factfinder‘s determination is manifestly unjust. Steadman, 280 

S.W.3d at 246; Watson, 204 S.W.3d at 414–15, 417. To reverse under the 

second ground, we must determine, with some objective basis in the record, that 

the great weight and preponderance of all the evidence, although legally 

sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417. Unless we 

conclude that it is necessary to correct manifest injustice, we must give due 

deference to the factfinder‘s determinations, ―particularly those determinations 

concerning the weight and credibility of the evidence.‖ Johnson v. State, 23 

S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.

B. Legally and Factually Sufficient Evidence Supports the 

Convictions

A person commits the offense of sexual assault of a child if the person 

intentionally or knowingly causes the penetration of the anus or sexual organ of a 
7

child by any means. Tex. Penal Code Ann. § 22.011(a)(2) (Vernon Supp. 2009). 

A child is defined in section 22.011 as a person younger than seventeen years of 

age. Id. § 22.011(c)(1). A person commits the offense of prohibited sexual 

conduct if the person engages in sexual intercourse with another person the 

actor knows to be, without regard to legitimacy, the actor‘s current or former 

stepchild. Id. § 25.02(a)(2) (Vernon Supp. 2009).

Count three alleged the offense of sexual assault of a child as follows:

And it is further presented in and to said court that the defendant in 

the County of Tarrant and State aforesaid on or about the 1st day of 

January, 2001, did then and there intentionally or knowingly cause 

the penetration of the female sexual organ of [Chancel], a child 

younger than 17 years of age who was not the spouse of the said 

defendant by inserting his penis into her female sexual organ[.]

Count four alleged the offense of sexual assault of a child as follows:

And it is further presented in and to said court that the defendant in 

the County of Tarrant and State aforesaid on or about the 1st day of 

January, 2002, did then and there intentionally or knowingly cause 

the penetration of the female sexual organ of [Chancel], a child 

younger than 17 years of age who was not the spouse of the said 

defendant by inserting his penis into her female sexual organ[.]

Count five alleged the offense of prohibited sexual conduct as follows:

And it is further presented in and to said court that the defendant in 

the County of Tarrant and State aforesaid on or about the 4th day of 

September, 2003, did then and there intentionally or knowingly 

engage in sexual intercourse with [Chancel], a person the said 

defendant knew to be his step-daughter[.]

The record demonstrates that Chancel was born on November 10, 1985. 

Therefore, on or about January 1, 2001, she was fifteen years old, and on or 

about January 1, 2002, she was sixteen years old. Chancel testified that Collins 
8

had intercourse with her on a regular basis beginning when she was thirteen or 

fourteen years old and ending when she was nineteen years old. She described 

the intercourse as consistent and testified that Collins had sex with her at least 

once a month until she was age seventeen. Chancel stated that there was never 

a year between when the sexual intercourse began and when it ended that it

stopped. A paternity test revealed that Collins is C.M.‘s father.

Viewing the evidence in the light most favorable to the verdict, a rational 

trier of fact could have found beyond a reasonable doubt that Collins committed 

the offenses of sexual assault of a child as alleged in counts three and four and 

the offense of prohibited sexual conduct as alleged in count five. See Jackson, 

443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. Accordingly, we 

hold that the evidence is legally sufficient to support Collins‘s convictions.

Collins contends that Chancel‘s testimony lacked credibility because of 

―the lateness of her report,‖ ―repeated denials over the c[o]urse of several 

years[,]‖ ―so many lies,‖ and ―the existence of other potential sexual partners.‖ 

He argues that ―[t]he lack of credibility is shown by the jury‘s acquittals of the 

Appellant as to both Counts 1 and 2.‖

Collins‘s arguments ignore the factual sufficiency standard of review, which 

requires us to defer to the jury‘s determinations concerning the weight and 

credibility of the evidence. See Johnson, 23 S.W.3d at 9; see Steadman, 280 

S.W.3d at 246. Chancel‘s testimony regarding exactly when the sexual assaults 

occurred was somewhat vague at times, but the jury was free to resolve the 
9

conflicts in the evidence, if any, in favor of the State. Further, as the State points 

out, our review of the sufficiency of the evidence to support Collins‘s convictions 

for sexual assault and for prohibited sexual conduct proceeds independent of the 

jury‘s determinations to acquit Collins of counts one and two. See U.S. v. Powell, 

469 U.S. 57, 67, 105 S. Ct. 471, 478 (1984).

Viewing all the evidence in a neutral light, favoring neither party, the 

evidence supporting Collins‘s convictions is not so weak that the jury‘s 

determinations are clearly wrong and manifestly unjust, nor does the conflicting 

evidence so greatly outweigh the evidence supporting the convictions that the 

factfinder‘s determinations are manifestly unjust. See Steadman, 280 S.W.3d at 

246; Watson, 204 S.W.3d at 414–15, 417. Accordingly, we hold that the 

evidence is factually sufficient to support Collins‘s convictions, and we overrule 

Collins‘s first, second, and third points.

IV. DOUBLE JEOPARDY

In his fourth point, Collins argues that he was denied his state and federal 

protections against double jeopardy because ―all count 5 . . . does is reprosecute 

[him] for sexual intercourse already alleged in both Counts 3 and 4.‖ See U.S. 

Const. amends V, XIV; Tex. Const. art. I, § 14. Collins thus raises a multiplepunishments double jeopardy argument. The State responds that Collins failed 

to preserve this point for appellate review. We agree.

Generally, to preserve a double jeopardy claim, a defendant must object at 

or before the time the charge is submitted to the jury. Gonzalez v. State, 8 
10

S.W.3d 640, 642 (Tex. Crim. App. 2000). An appellant is excused from the 

preservation requirement, however, when (1) the undisputed facts show the 

double jeopardy violation is clearly apparent on the face of the record and 

(2) enforcement of usual rules of procedural default serves no legitimate state 

interest. Id. at 643. A double jeopardy multiple-punishment violation is clearly 

apparent on the face of the record when the record affirmatively shows multiple 

punishments resulting from the commission of a single act that violated two 

separate penal statutes, one of which is, on its face, subsumed in the other. 

Cervantes v. State, 815 S.W.2d 569, 572–73 (Tex. Crim. App. 1991), cert. 

denied, 502 U.S. 1110 (1992); Hanson v. State, 180 S.W.3d 726, 732–33 (Tex. 

App.—Waco 2005, no pet.).

In this case, count three alleged that Collins committed the offense of 

sexual assault of a child on or about January 1, 2001; count four alleged that he 

committed the offense of sexual assault of a child on or about January 1, 2002; 

and count five alleged that he committed the offense of prohibited sexual conduct 

on or about September 4, 2003.10 The sexual assaults described in counts three 

and four and the prohibited sexual conduct described in count five each address 

separate incidents and conduct that occurred on distinctly different dates.

 

10It is well established that the ―on or about‖ language of an indictment 

allows the State to prove a date other than the one alleged in the indictment as 

long as the date is prior to the presentation of the indictment and not so remote 

that prosecution is barred by the statute of limitations. Sledge v. State, 953 

S.W.2d 253, 256 (Tex. Crim. App. 1997).
11

Chancel testified that Collins began having sexual intercourse with her 

when she was thirteen or fourteen years old and that the intercourse stopped 

when she was nineteen years old. She stated that Collins had sexual intercourse 

with her at least once a month until she reached age seventeen. She also 

testified that Collins ―consistently‖ had intercourse with her from age thirteen or 

fourteen until after C.M. was born. C.M. was born on June 4, 2004, 

approximately nine months after September 4, 2003. Collins is C.M.‘s father.

We conclude that it is not clearly apparent on the face of the record that 

Collins has suffered multiple punishments for the same conduct in violation of his 

state and federal guarantees against double jeopardy. See Cervantes, 815 

S.W.2d at 572–73; Bracy v. State, No. 05-08-00144-CR, 2009 WL 1364412, at *2 

(Tex. App.—Dallas May 18, 2009, pet. ref‘d) (not designated for publication) 

(holding that face of record did not demonstrate a multiple-punishments violation 

in part because appellant began sexually molesting his daughter in 2005,

continued to do so for two years, and admitted that he had molested her so many 

times that he had lost count). Thus, Collins has failed to meet the first prong of 

the exception to the preservation requirement. See Gonzalez, 8 S.W.3d at 643. 

Accordingly, we hold that Collins failed to preserve this point for appellate review. 

We overrule Collins‘s fourth point.
12

V. CONCLUSION

Having overruled all four of Collins‘s points, we affirm the trial court‘s 

judgments.

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2010