1 Jo hn T. Boy d, Chief Justice (Ret.), S eventh Cour t of Appeals, sit

ting by assignment. Tex. Gov’ t Code Ann. §75.002( a)(1) (Ver non Supp. 2004). NO. 07-02-0524-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MARCH 23, 2004

______________________________ DENNIS HOOD, APPELLANT

v. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 181 ST DISTRIC T COURT O F POTT ER COUNTY; NO. 45,506-B; HON. JOHN BOARD, PRESIDING

_______________________________ Before REAVIS and CAMPBELL, JJ., and BOYD, S.J. 1
In this appeal, appellant Denn is Hood seeks reversa l of his conv iction of agg ravated sexual a ssault of

a chil d und er th e age of 1 4 year s. Th e pun ishm ent, enha nced by two previousfelo ny conv ict ions , w as as sess ed at lifeimprisonment

in the Texas Department of Criminal Justice, Ins titutional D ivisio n (TDCJ-ID ). In seeking reversa l, appellant2 Appellant was actual ly re- indicted on Jul y 2, 1997, w ith the additi on of the punishment

enhancing paragraphs. However, that i ndict ment co ntaine d some technical errors le ading to the s econd re-indi ctment on June 25, 2002

. 2 advances two points

for our decisi on. In his first point, he arg ues he is enti tled to reversal because other charg es were add ed after the reversa l of his first convicti on of this offense. In his second point, he asser ts the evi dence is factuall y insufficient to support the verdict of the jury. Disagreeing that reversal is required, we affirm the j udgment of the trial court. Procedural History Appellant

was ori ginally

ind icted by a Potter

County g rand jury

on November 17, 1994, for the offense of aggr av ated s exual assault of a child under the a ge of 14 years. The case proceeded to trial under that indictm ent, and appellant was convicted with his punishment

being asses sed at 65 year s confinement in the TDCJ-ID. Upon appeal to this court, the convic tion w as rever sed and the cause r

emanded for new tr ial. See Hood v. State, 944 S.W.2d 743 (Tex. App.–Amarill o 1997, no pet.). On J une 25, 2002, 2 the State obtained a re-indic

tment for the offense wi th the addition of tw o allegati ons concerning ap pellant’s previous convictions of felony off enses. If those add itional allegations w er e found to be true by the trial jury, as they w ere, the punishment

ranges were inc reased from
a potential penal punishment for li fe or any term of not

more than 99 yea rs or le ss th an f ive years to pe nal confinement for life or for any term ofnot more than 99 years or less than 25 years. See Tex. Pen. Code A nn. §§12 .32 and 12.42(d) ( Vernon 2003 and Vern on Supp. 2004). It i s the addition o f the allegatio ns concerning appellant’s p rior conv ictions that giv e rise to hi s claim of prose cutorial v indictiveness presented i n his first poi nt.3 Factual History
The nature of appellant’ s challeng es requir es us to recount re levant portions of the evidence. Lekel ia Shaw , the comp lai nant, testified that she was born on February 10, 1981. In mid-July

1994, she lived in a household consisting of herself, her mother Jamie Shaw, her three-y

ear-old brot her Chad, her cousin Kris tie Titus, and Kr istie’s fri end LaSh awn Moore. Appel lant wasa friend of Kristie whom Lekelia met shortly afte r Kristie moved into the Shaw resi dence. He became a daily v isitor to t he household. On the day of

the occurrence, Lekelia sai d she was i n her mother’s room talking on the telephone whe n appellant suddenly appe ared and started fondling her breasts. Lekelia told appellant

to stop, told t he person to w hom she was talking on t he telephone she would call back, and hung up the telephone. Sh e then went toher bedroom w ith appellant following her. Appella ntordered her to remove her T-shirt and w hen she refused to do so, he tore the shirt dow n the middle. H e then pulled dow n her shorts, pulled his j eans and undershortsto his knees, pushed her onto the bed, and as she tried to push him away, got on top of her and sexually assaulted h er.
After the assault, s he averred, appellant threatened to “whip her ass” if she told anyone about the assault . He went to the living room, briefly tried to make conversat ion, and left. Lekelia then threw her torn T-shir

t into the dumpster , and took a prol onged bath in which s he stayed unti l her mother r eturned. She testi fied that appellant penetrated her vagina and she was not married to hi m at the time.4

Lekelia admitted she did not repo rtthe occurrence until October 4, 1994; however, she said, that delay was because she was afraid of he r mother’s reaction. O n October 4, 1994, her

mother and Kris tie got into an argument about Lekelia wearing Kristie’s clothes. In the course o f that argum ent, Kristie made a remark abo ut Lekelia being fat, to which Lekelia responded that Kr istie’s fri end, appe llant, appa rently di d not think she was fat bec ause he ha d raped her. H er mother then q uestioned Lekeli a about the rape and summoned the police. The police inter viewed Lekelia, took

a writ ten statement

from her, and she underwent a sexual assault exam at the hospital.
Lekelia admitted that she had poss ibly had a prior sexual experience with a 14-yearold-boy on St. Patrick’s Day 1994. They were both naked and she be lieved they had sex but“s he didn’t feel anything .” She admitted that she had not tol d the police i nvestig ator aboutthat possiblesexual encounter because her mother was present at

the ti me and she was afraid of her

mother’s reac

tion.
Sexual assault nurse examiner Bec ky O’Nea l testified that she performed a sex ual assault examination of Lekelia. She found t wo wel l-healed tw

o millimeter tears to Lekelia’s hymen at the four

o’clock and six o’c lock positi ons which could have occurred as a result of consensual or

non-consensual sex. She could not deter mine when the tears occurr ed.
Jamie Shaw, Lekel ia’s mother, testified that Lekel ia stayed at home while Jamie worked and Chad was placed in day

care. She sai d the October 4, 1994 argument between Leke lia an d LaS hawn was about c lothes and she called the police as the result of a statement made duri ng the arg ument. She admitted th at she had prev iously testified5

thatthe argument bet

ween them was when she told LaSh awn th at sh e was go ing to have to move out but, s he averred, this arg ument occurred after the one over the clothes. Jamie also testified that Lekelia’ s behavior changed after

mid-July 1994. Lekelia had been outgoing prior to th at time but after the inci dent, she wanted to be alone and s pent long perio ds in t he bathr

oom.
Kristie Titus, who graduated from high school on June 1, 1996, test ified that she had lived with Jami e Shaw, w ho was her aunt. She said t hat La Shawn was her best fri end. She averred t hatthe October 4, 1994 argument w as not about clothes becau se she could notwear Lekel ia’s clothes . Rather, sh e said, the argument was the result of Kristie telling Shaw that she and LaShaw n saw Lekel ia in a parke d car possibl y havi ng sex. Sh a w began y elli ng at Lekeli a, and L ekeli a repl ied tha t she h ad not told her “about the ti me [appellant] raped me.” It was then that discussion of the incident w ith Lekelia w as dropped and their attenti on diverted to the sexual assault inc ident. TerryMcCarthy, the sa fety di rector for Pl ains Transporta tion, testified that according to their records, appella nt wa s drivi ng a truck between Weatherford, Oklahoma, and Plainview

and Amari l lo un til 4: 45 p. m. on the d ate o f th e alle ged o ccurr ence . LaS hawn Moore averred that the October argument beg an because Kris tie reported to Shaw that s he had seen Lekelia an d a boy in a parked car with the window s steamed up. It was t hen that Lekelia retorted that she “didn’t s ay nothing when [appellant] raped [he r].” Appellant took the stand and testi fied that he did not rape Leke lia, fon dle h er bre asts , have sexual contact with her, th reaten her, thro w her on the bed, or t ear her cl othing.6 Discussi on of Prosecutori al Vindicti veness Poin t
The State initia lly res ponds to appellant ’s claim of pr osecutorial vindicti ven ess b y arguing that the quest ion wasnot properly preserv ed for our rev iew. In d oing so, i t points outthat the proc edu ral hi stor y of t his ca se sh ows that appellant al ternately opted between representing himself and havi ng counsel do so. The clerk’s record reveals that appellant had filed a pro se mot ion to quash t he tr ial indict ment because of prosec utorial vindictiveness in including the prior conviction allegation. The record is not clear whether the moti on was filed at a time whe n appellant was representi ng himself or when he wa s represented by

counsel. How

ever, in considering the motion, the trial court posited i t was filed at a time w hen appellant w as not represented by counsel. Th e gist of the State’s arg ume ntis that ther

e is no rig ht to hybri d representati on and once an appell ant has retained an attorney, the trial court is enti tled to l oo k solely to the attorney

and is not required to consider pro se motions. In advancin g that propositi on, appellant relies upon the holdings i n Ashcraft v. State, 900 S.W.2d 817, 831 (Tex. App.–C orpus Chri sti 1995, pet. ref’d), and Busselman v. State , 713 S.W.2d 711, 714 (Tex. App.–H ouston [1 st Dist.] 1986, no pet.). However, we believe the correct rationale in considering such matters i s that applied by the court in Meyer v. St ate , 27 S.W.3d 644 (Tex. App.–Waco, 2000, pet. ref’d). In tha t case, the court opined that alt hough a defen dant does not hav e a right to hybrid representation , in the exer cise of its discretion , the trial court may allow hi m to do so. Id. at648. Thus, by considering and ruling upon a pro se moti on, the trial court has essentially7

allowed the defendant hybr id representat ion upon that one moti on. Id. Therefore, when the trial cour

t did so, t he motion tha t was filed pro se by t he defendant was valid and as eff ecti ve as any other

motion filed by an attorn ey. It is true that the trial court w as not required to consider the motion, but w hen it did so, its rulin g became subjec t to review upon appeal. Thus, e ven assum ing arguendo that appellant w as represented by

counsel atthe time he filed hi s pro se motion, that f act wo uld not change our ruling . We must, therefore, consi der the meritsof this point.
The seminal case i n the are a of unconstitutiona l judicial vindict iveness w as the SupremeCourt’s dec ision in North Carol ina v. Pearce, 395 U .S. 711, 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). In t hatcase, reasoning that to hold othe rwise might unconstitutionally deter a defendant’s exercise of his right to appeal or collaterally attack his first convicti on, the Court held vindicti veness ag ainst a defendant for having successfullychallenged his first conviction must play no part in the sentence he receives after a new tri al. Id. 395 U.S. at 725, 89 S.Ct. at 2080.
The leading case invo lving prosecutorial vindictiveness is Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) . In that case, the defendant was convicted of a misdemeanor by a North Carolina state cou rt. After he exercised his right to a trial de
novo in a higher

court, the pr

osecutor obt aine d a superseding indictment char ging the defendant with a felony rather than a mi sdemeano r. B oth the orig inal misdemeanor (assault with a dead ly weapon) and the subs equent felony were based upon the same fight between the defendant and a fellow prisoner. Consider ing thes e underlyi ng facts, the8

Court held that the Pearce principle ap plied to pros ecutorial as well as

judicial vindictiveness and that it was not constit utionally permissibl e to respond toa defendant’s invoca tion of h is righ t to appeal by bringing a more serious charge ag ainst him. Id. 417 U.S. at 28-29, 94 S.Ct. at 2103.
In Hardwick v. Doolittle, 558 F.2d 292, 302 (5th Cir. 1977) , cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978), the court’s discussion is helpful in considering
our case. As mater ial here, in that case, the appellant and a co-defendant were originally indicted on one count of armed r obbe r y and one count of aggrav ated assault, and they both were conv icte d. Upon appeal, appellan t’s conviction was reversed and the cause remanded for retrial . Subsequent to the remand, theprosecutor ob tained a supers eding indictment char

ging appel lant alone w ith two counts of armed robber y and two counts of aggravated assault. He was convicted on all counts. The issue of u nconstitutio n al prosecutor ial v indictiveness in obtaini ng the second i ndictment was presented in t he appeal. In its opini on, the court had oc casion to dis cuss and exp licate the meaning of the Blackledge reference to unconstitutio nal prosecutor ial vindict iveness. In consideri ng that question, the court noted the collateral principle that there is a broad ambit to pr osecutorial discretion, most of which is not subjec t to judicia l control. Id . at 301. In ba lanc ing th e two principles, the court opin ed t hat the teaching of the Blackledge decision in regard to
unco nst itutional prosecutorial vindictiveness was that once a prosecutor exercises his discretion to bring c harges ag ainst a defendant, nei ther he nor his successor may increase the number or severity of those charges in circumstanc es that sugg est the incre ase was9

made in retalia tion for the defendant’sinvocati on of statutory or constitut ional rig hts. Id. However, it noted, a broad and unif orm application of tha t principle wou ld negate a prosecutor’s discretion in every case in w hich a defendant was initial ly indic ted for less than all the violations that his alleged spree of activity would permit. Theref ore, the court explicated that if a prosecutor can show he did not in fact ac t vindictive ly, a change would not violate the Pearce principle . Id. at 302

. The court did not discuss w hat type of proof would suffice to demo nstrate the absence of unconstitutional vindictiveness. In Alvarez
v. State , 536 S.W.2d 357 (Tex. C rim. App.), cert. denied, 429 U.S. 924, 97 S .Ct. 325, 50 L.Ed.2d 292 (1976), the court, in considering the question of prosecut orial vindictiveness, opined, ”[v]indi ctiveness is the evil ob

jec t of North Carolina v. Pearce , and it is equally impermissible whether flowing from a judge or a prosecu tor.” Id. at 364.
The princ iple to be disti lled from thes e cas es is t hat i n a ca use i n wh ich a reindictment

is obtained after a reversal and remand, in order to a void a Pearce problem, the burden is upon the pr

os ecutor to sh ow th at the r e-ind ictmen t was

obtain ed for s ome reason other tha n prosecutori al vindict iveness. Whether the re-indi ctment was ob tained for some reason other

than vindi ctivenessbecause of a succ essful appeal must, of necessity , be determined on acase-by- case basis.
In addition to the cases we havediscussed, i n urging reversa l is req uired, appell ant cites and relies u pon the decision of the Court of Criminal Appeals in Bouie v. State , 565 S.W.2d 543 (Tex. C rim. App. 1978), and the rational e the court app lied in Miracle v. Estelle, 592 F.2d 1269 ( 5 th Cir. 1979). In Bouie, the facts were somewhat similar to those10

before us. The defendant was or iginally indicted for r

obbery by

assault and a s ingle pri or convicti on alleged for enhanceme nt. Bouie originallypled guil ty and the State abandoned the enhancement parag raph. On appeal, the conv i ction wasreverse d. The State then obtained a new

indictment which contained two enhance ment paragraphs. The defendant again entered a gui lty plea a nd, at the tria l level, unsuc cessfully so ught dismis sal of the enhancement

allegatio ns. There was not hing in the record show ing any expl anation by the State for the additi on of the two enhancement allegati ons.
In consideri ng the quest ion of prosecutori al vindictiveness, the court opined that in view of the “absence of objec tive informati on about i dent ifiable conduct by appellant occurring after the first t r ia l,” “due pr ocess wasviolated by use of the enhancement paragraphs ” in the indict ment to increasethe potential pun ishment and remanded t he
cause for a new puni shment hearing

. Bouie v. State, 565 S.W.2d at 547. By its comment, the court significantly noted the absence of any attempt by theState to justify laying a basis for increased puni shment other than th e appellant’s appeal and rev er sal of the first convicti on.
In Miracle v. Estelle , the Stat e had secu red f rom d iff eren t gran d juri es two indictments based upon the same conduct. One of t hose indic tme nts wa s fo r robb ery, with
one prior convicti on alleged for

enha ncem ent, and t he ot her wa s fo r aggra vated robb ery, with two enhance ment par agrap hs. Th e d efendant was ori ginally convicted upon the robbery indictment. After the first conv iction was rever sed on appeal, the State elected to proceed under the aggravated robbery indictment. I n considering the question of11

vindictiveness, the court noted that by its action, the State had changed a prosecution that called for a five year minimum punishm ent to one that would potentially result in a 15 year minimum punishment. In considering this, the court held that beca use the State offered no explanati on for “upping the ante” against the def endant, the State cou ld not re-indict
or re-try the defendant on the ag gravated robbery c harge. Miracle v . Estelle, 592 F.2d at 1277. However, on remand tothe state cour t, the Court of C riminal Appeal s refused to set aside the second, more serious, ag gravated robbery indictment becau se, it said, “[t]he opinion in Miracle v

. Estelle . . . i s chock ful l of fact ual mi sstat ements and some misconceptionsof the Texas substantive law applicable tothe case before it.” See Miracle v. State , 604 S.W.2d 120, 125 (Tex. Cri m. App. 1980.)
We remai n conv inced that i f the Sta te can make so me reasonable explanation for re-indictment

other than vindi ctiveness , the Pearce rationale is satisfied and reversal is not required. For example, in Raetz sch v. State , 709 S.W.2d 39, 41 (Tex. App.–Cor pus Christi 1986, pet. ref’d), the prosecutor ex plained that her failure to all ege a prior

convicti on in an earlier indictment that resulted in a rev ersed convi ction was becaus e of what she thou ght
was an inadequate pen packet and, b y the time of a re-indict ment, she had recei ved a proper pen packet. The cou rt held t hat the pre sumption of vindi ctivenessneed not be applied in tha t case because “ the circumstan ces of retrial were ex plained by t he prosecution and do not indicate to us vindictiveness.” Id. at 41.
In this case, t he prosecutor, who was not the prosecutor

in th e fir st ind ictm ent, gave an uncontrove rted explan ation to the trial court that, a s a result of her research and trial12

preparation, she discovered that the intent had been to incl ude the en hanc ement paragraphsbefore and “it w as an omis sion from the ve ry firs t ind ictm ent a nd sh ould have been charged from thebeginning.” This explanation is similar to the one held sufficient in the Raetz

sch case. We cannot say thatthe trial court abused its discretion in deciding that the explanation was sufficien t to overcome any presumption of vindictiveness. Appe llant’s first point i s overru led. Reiterated, in appella nt’ s second point he asserts the evidence is factually insufficient

to support the v

erdict. The standards by w hich we condu ct our fac tual sufficiency review

are now s o well es tab lished as t o be axiomati c. Suffice it to s ay, our task is toperuse the whole record and consider w hether the ov erwhelming weight of the evidence so contradic

ts the ver

dict as to make that v erdict clea rly w rong. Clewis v. St ate , 922 S.W .2d 126, 129 (Tex. Crim . A pp. 1996); Hall v. Sta te , 970 S.W .2d 1 37, 1 40 (T ex. App.–Amarillo 1998, pet. ref’d)

. In defining w hen the scale i s tilted to t he extent requiri ng reversal, the Clewis court invoked such descriptive terms as “shocks the conscienc e” and “clearly demonstrates bias.” Clewis v. State , 922 S.W.2d at 135. In conducting our factual revie w, it is also axi omatic that we defer to the jur y’s res olution of

factual disputes. That is, the power to reasonabl y infer facts fr om the evidenceto resolve credibili ty issues and determine what testi mony is cr edible is not ours, but the jury’ s. Depauw v. State , 658 S.W .2d 628, 633-34 (Te x. App.–Amarillo 1983, pet. ref ’d).
To support his contention of factual insufficiency , appellant cites v arious instances of inconsistenc ies in the v ictim’s tes timony at thi s trial and at the earlier

trial some ei ght13

ye ars previously. He also cites the testimony of the safet y director of Plain s Transportation, appellant’s e mployer at the time, that dri ver’s l ogs showed appellant was outof town at the t ime of the incident and ap pellant’s denial that the occurrence ever happened. However, notwithstanding any inconsiste ncies that may hav e existed i n her test imon y, the victim did not equi vocate in testifying that appellant committed the offense, and the physical evidenc e was cons istent with her testimony, as was the testimony that her mental condition (s he became withd rawn) c hanged after the date of the occ urrence. The testimony

of a vic tim, standing al one, even if the v ictim is a child, is sufficient to suppor t a convicti on for sexual a ssault. Ruiz v. State , 891 S.W .2d 302, 304 (Tex. App.– San Antonio 1994, pet. ref’d); see andcomp are Blackm on v. State , 80 S .W .3d 1 03, 1 05-0 6 (Te x. App.–Texarkana 2002, pet. ref’d) (evidenc e was sufficie nt notwithsta ndi ng the 12- year-old victim made some inconsi stent statements w hen she testified t hat the accused committed the off ense , her outc ry sub stan tial ly con for med to he r test imon y, and medical findings were consistent

with that testimony) ; Lange v. State , 57 S.W.3d 458, 461-65 ( Tex. App. –Amarillo 2001, pet. ref’d) (ev idence wassufficient despite delayed outcr y, inconsi stencies in the victim’s descriptio n of the incident, a nd some evide nce of a mot ive for fabrication, when medical evidence s howed attenuati on of her hymen consistent with the victim’s testimony); Orona v. State , 836 S.W.2d 319, 322 (Tex. App. –Au stin 1992, no pet.) (although the re
were some conflicts i n the evidence, it wassufficient w here the victi m testified that the accused penetrated her an us with his penis and a pediatrici an testified about a fissure on the victi m’s rectum cons istent wi th penetration) . Appellant’s second point i s overru led.14

In summary, both of appellant’s poi nts are ove rruled and the judgment of the tr ial court is affirmed.

John T. Bo yd Senior Justice
Do not publish

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