COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

TAUREAN RAMON CRAVER, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00118- CR

Appea l from 297th District Court of Tar rant County , Texas (TC # 1160320D)

O P I N I O N Taurean R amon Craver was char g ed by indictment with six counts of ag g rava ted sexual assault of a child and one count of indece ncy with a child. These counts char g ed that Appellant: (1)

cause d the sexual org an of the child to contac t his sexual org an; (2) digitally penetr ated her fema le sexual org an; (3) cause d her sexual org an to contac t his mo u t h ; (4 ) ca u sed her mouth to be penetr ated by his penis; (5) eng ag ed in sexual contac t by touching the child’s fema le sexual org an; and (6) cause d her a

nus to be pene trated by

his penis. A jury found Appellant g uilty of eac h count. I n acc ordanc e with the jury ’s verdic t, the trial
court assessed punishment at forty y ear s for Counts I , I I , I I I , I V, and VI , and twenty y ear s for Count V. The Court order ed that the sentenc es as to Counts I , I I , I I I , I V, and VI be serve d

cons ecutively and that the sentenc e for Count V be serve d concur rently with the sentenc e for Count I I

. Additionally , the court order ed Appellant to pay a $1,500 fine in acc ordanc e wit h the verdic t as to eac h count. We reve rse the judgme nt to dismiss the conviction for Count V and aff irm the judg ment as to Counts I , I I , I I I , I V, and VI

. F ACTUAL SUMMA RYI n 2008, Suz anne Ander son taug ht first g rade at Western Hills Elementar y School. A.S. was

a student in Ander son’s class from Aug ust of that y ear until just befor e Thanksg iving, when the child transfe rre d to another school. Ander son distinctly reme m b ered A.S. as a model student and

aca demically

above he r pee rs. I n ear ly Dec ember , Ander son prepa red a writing folder to pass on to the child’s new school. I n choosing from past writing s t o p u t i n t h e new folder, Ander son found a very disturbing note folded in half and tucked into a ba ck pocke t of the writing folder, behind all the ot her papers. On the front of the note A.S. w rote her name and the date at the top. She drewa picture in the middle and wrote, “the day with my stepdad” at the bottom. Ander son descr ibed the picture as “two people in bed; one is a g irl or a woman, the other is a man. And they are lay ing [si de] by side, and the picture of the g irl has a ve ry

sad fa ce.” On the bac k of the note, A .S. wrote: One day my

stepdad ha ve sex with me beca use he love d me, and I

hate it be cause I never ever have se x with my

stepdad be from I

[really ] m y

family

. The back of the note was signe d, “by [A.S .].” Ander son immediately took the note to her principal and toge ther they called Child Protective Service s (CPS). They also notified the child’s new school. Kriste Moron is an investiga tor with CPS

. She testified that CPS rec eived a repor t that A.S. had written a l et t er d es cribing her stepfathe r having sex with her. Moron went to the home and spoke with A.S., her mother, and her brother. Moron talked with A.S. alone fo r approx imately fiftee n minutes. During the interview, A.S., “was l i k e a n ormal six -y ear -old, talkative, seeme d easy g oing, easy to talk with me. She didn’t rea lly seem to have a lot of conce rns or any thing at the time.” Q. When y ou met with A.S., did she mention sex ual abuse from Ta urea n Craver ? A. Yes, she did.Q. Now, once she tells y ou that, is it y our job to press for details or do y ou just stop

there ? A. I t’s my job to conclude the interview with whateve r information she’s g iven me and then the c hild is set up for a for ensic intervie w. After Moron completed he r interview , she sche duled a f orensic inter

view with L indsey

Dula. L in d s ey Dul a is a fore nsic interviewe r with the Alliance for Children. A.S. descr ibed “chr onic sexual abuse” from her daddy , or stepdaddy who A. S

. ca l l ed “T.” The child descr ibed multipl e instance s of sexual abuse including : [A.S .] talked about differ ent forms of abuse. She talked abou t p en i le vag inal pene t ra t i o n . She talked about digital vag inal penetr ation. She talked about oral copulation by

the suspect to her

as we ll as from her to the offe nder a s well. So she talked about various ins tance s as well as di ffe rent locations within her home when this abuse took place

. A.S. also told Dula that sometimes T would come into her room while her

brother w as aslee p and they would stay on one side of the bed s o n o t t o wa k e him. Other times, T would come into her

room and take her into her mother’s room while her mother was at work. He would take off all of her clothes. A.S. de scribed instances wher e he’d put his “ding -ding ” (which Dula established was his penis) into her “middle part,” which ref ere nced her vag ina. A.S. also descr ibed instances wher e T would put his mouth on her middle part and suc k and lick. Sometimes T would make her lie so that her fac e would be by his penis and his fac e would be by her middle part and she would have to suck and lick his penis while he did the same to her middle part. A.S. also descr ibed instances wher e she’d have to suck on his penis to make the “stuff” come out. The abuse occur red when she was five y ear s old. Rebec ca Sulli van is a fore nsic nurse at Cook Children’ s medical cente r. On Dec ember 22, 2008, Sulli van examined A.S. The child told her T put his ding- ding in her middle part, and also that he put his fing ers and his ding- ding in her bottom. A. S

. tested positive for chlamy dia, a sexuallytransmitted disease. T he child also testified to the “ nasty things” T would do to her. INEF F ECTIVE ASS ISTANCE OF COUNSEL I n I ssue One, Appellant contends counsel rende red ineffe ctive assistance by failing to object

on confr ontation g rounds to “m u l t i p l e, testimonial, out-of-c ourt statements that bolstered the complainant.” Spec ifically , he objects to the testimony of L indsey

Dula, the f

orensic inter

viewer , and Rebe cca

Sulli van, the f

orensic nur se at Cook Children’s Hospital. Both the United States an d the Texas Constit utions g uara ntee an acc used the rig ht to assistance of counsel. U.S. C O N S T . amend. VI ; T E X .C O N S T . art. I , § 10; T E X .C O D E C R I M .P R O C .AN N . art. 1.05 (Ve rnon 2005). This rig ht includes the rig ht to rea sonably eff ective assistance

. Strickland

v. W ashington , 466 U.S. 668, 683-86, 104 S.Ct

. 2052, 2062, 80 L .Ed.2d 674 (1984). I n Strickland , the Supreme Court set forth the standard of revie w for evalua ting claims of ineffe ctive assistance of

co u n s el

. Id

. at 687, 2064. The two-prong Strickland test require s Appellant to show that: (1 ) counsel’s perf

ormanc e fell below an o b jective standard of rea sonablene ss, and (2) counsel’s perf ormanc e prejudice d his defe nse. Id

. Prejudice require s a showing that, but for counsel’s unprofe ssional error , there is a rea sonable proba bility that the result of the proce eding would have been differ ent. Id .; Mitchell v. State, 68 S.W .3d 640, 642 (Tex.Crim.App. 2002); Vasquez v. State , 830 S.W .2d 948, 949 (Tex.Crim.App. 1992). Reasonable probability is define d as a “proba b i l i ty sufficie nt to undermine confide nce in the outcome.” Stickland

. 466 U.S. at 694, 104 S.Ct

. at 2068. Appellant bear s the burden to prove ineffe ctive assistance of counsel by a preponde ranc e of the evidenc e. Jack

son v. State , 973 S.W .2d 954, 956 (Tex.Crim.App. 1998)

. I n analy zing a claim for ineffe ctive assistance , we beg in with the strong presumptio n that counsel was competent. Thompson v. State , 9 S.W .3d 808, 813 (Tex.Crim.App. 1999). Appellant must overc ome the presumpt i o n t h at counsel’s conduct falls within the wide rang e of rea sonable, profe ssionalassistance , and that, under the circ umstances, the challeng ed action might be considere d sound trial

strateg y . Thompson , 9 S.W .3d at 814. Counsel’s action or inaction will be found to be rea sonable if the rec ord is silent as to the fac ts, circ umstances, or rationale behind a particula r course of action. Id. Appellant contends that his attorney rende red ine ffe ctive assist ance by failing to object on Confrontation Clause g rounds to out-of-c ourt statements the victim made to the fore nsic interviewe r and the se x ual assault nurse . His arg ument is based in part on Crawf ord v. W ashington , 541 U.S. 36, 124 S.Ct

. 1354, 158 L .Ed.2d 177 (2004). I n Crawf ord , the United States Supreme Court he ld that testimonial statements of witnesses absent from trial violate the defe ndant’s Six th Amendment rig ht to confr ontation, unless the d ec l arant is unavailable , and the defe ndant has had a prior opportunity to cross-e x amine. Crawf ord , 541 U.S. at 59, 124 S.Ct

. at 1369. But the court noted that “[t] he Clause does not bar admi s s i o n o f a s t atement so long as the decla rant is prese nt at trial to defe nd or explain it.” Id. at 59. A.S. testified at trial, in detail, about the sexual assault. Be cause there was no Crawf

ord/ Six th Amendment violation, defe nse counsel was not ineffe ctive for failing to object on those g rounds. We overr ule I ssue One.DOUBLE JE OP ARDY

I n I ssue Two, Appellant arg ues that his convictions for ag g rava ted sexual assault of a child by digital penetr ation (Count I I ) and indece ncy with a child by touching (C o u n t V) v i olate the constitutional g uara

ntee ag ainst double jeopar dy

. He contends that there is no evidence showing sexual contac t by touching occur red in the absenc e of digital penetr ation. He thus conclude s that the indece ncy by touching was incident to, or subsumed by , the ag g rava ted sexual assault. We a g ree . The Double J eopardy Clause of the Fifth Amendment, applicable to the s tates t hroug h the Four teenth Amendment, protec ts an ac cu s ed aga inst a second prosec ution for the same offe nse following an acquittal , a s ec ond prosec ution for the same offe nse following a conviction, and multipl e punishments for the same offe nse. Brown v. Ohio , 432 U.S. 161, 97 S.Ct

. 2221, 53 L .Ed.2d 187 (1977); Litt rell v. Stat e , 271 S.W .3d 273, 275 (Tex.Crim.App. 2008); U.S. C O N S T . amend V, XI V. Appellant’s double jeopar dy claim implicates the multipl e punishments cate g ory . See Barnes v. State , 165 S.W .3d 75, 87 (Tex.App.--Austin 2005, no pet.). As the State points out, Appellant did n o t ra i s e this issue in the trial court. Gene rally , to prese rve a double jeopar dy claim on appeal , a defe ndant must have objected at trial. Gonzalez v. State , 8 S.W .3d 640, 642 (Tex.Crim.App. 2000); Cabral v. State , 170 S.W .3d 761,764 (Tex.App.-- For t Worth 2005, pet. ref

’d). A double jeopar dy claim, howeve r, may be raised for the first time on appea l when the double jeopar dy violation is appar ent from the fac e of the rec ord. Go n z a l ez , 8 S

. W

. 3 d at 643. Be cause we have a complete recor d, “it can be determined from undis puted fa ct s clea rly appar ent on the fac e of the rec ord” whether there has been a jeopar dy violation. See Murray v. State , 24 S.W .3d 881, 889 (Tex.App.--Waco 2000, pe t. ref’ d). A person who commits more than one sexual assault ag ainst the same complainant may be convicted and punished for ea ch s epar ate act, even if the acts wer e committed in close temporalproxi mity

. Vick v. State , 991 S.W .2d 830, 833 (Tex.Crim.App. 1999). The statutes do not, howeve r,

authorize “ ‘stop-ac tion’ p ro secutions.” Patterson v. State , 152 S.W .3d 88, 92 (Tex.Crim.App. 2004). That is, a defenda nt cannot be convicted for a completed ac t of sexual assault and also for conduct that is demonstrably part of the commission of the completed act. Id

. Thus, penile contac t with g enitals in the course of penile penetr ation is subsumed in a conviction for the penetr ation. Id .;

s e e B a rnes v. State , 165 S.W .3d 75, 87-88 (Tex.App.--Austin 2005, no pet.)(holding that convictions for sexual assault by penetr ation and by g enital-to-g enital contac t based on single act of penetr ation constituted double jeopar dy ). A.S. testified as to the sexual assault by digital pe netra tion: Q. Would he ever

touch y our private part with his fing ers? A. Yes. Q. Tell me a

bout that. A. Well, whe n he stops, he alway s puts his pointy fing er up in his mouth, a nd then afte r he put his fing er in his mouth, there would be slobber and he sticks it up in my middle part. Q. Would it actua lly

g o inside y our middle part? A. Yes. Q. Can y ou put y our hand on top of my hand? Can y ou put y our hand underne ath my hand? MR. VASSAR: And just for the rec ord, she did put her hand over my hand and now she has put her

hand under

my hand. THE COURT: All rig ht. Q. (B y Mr. Vassa

r) And c an y ou put y our fing er in the hole ? MR. VA SSAR : And just one more time let the re cord ref lect that she put he r hand on top of my hand and was able to put her fing er inside the circ le I was making with my hand.THE COURT: All rig ht.

Q. (B y Mr. Vassar) Now, would he actually stick his fing er inside of y ou afte r he licked it? A. Yes. The c hild testified to a varie ty of sexual acts, occurring multipl e ti mes over an extended period of time. Yet, there is no clea r testimony by which she indicated that Appellant committed the offe nse of indece ncy by touching the g enitals separ ate and apart fr om committing the sexual assault by digital penetr ation. See Aportela v. State , No

. 0 8 -0 5-00396-CR, 2007 WL 2523551, at *7 (Tex.A p p . - - E l Paso Sept. 6, 2007, pet. ref ’d)( not desig nated for publication). Ba sed on the testimony prese nted at trial, we conclude that the indece ncy by touching was incident to and subsumed by the ag g rava ted sexual assault by digital penetr ation. See Patterson v. State , 96 S.W

. 3 d 4 2 7 , 4 32-33 (Tex.App.--Austin 2002), aff’d , 152 S.W .3d 88 (Tex.Crim.App. 2004). I ssue Two is sustained. When a defe ndant is convicted of two offe nses in violation of the double jeopar dy g uara ntee, the proper reme dy is to set aside the conviction for the offe nse car ry ing the less serious punishment. Id

. at 433, citing Landers v. State , 957 S.W .2d 558, 560 (Tex.C ri m . App. 1997). Acc ording ly , we

reve rse Appe llant’s conviction for inde cenc y with a child by

contac t. LEGAL SUF F ICIENCY I n I ssue Three , Appellant challeng es the leg al sufficie ncy o f t h e ev i dence to support the indece ncy of a child offe nse alleg ed in Count V of the indictment. B eca use we have r efor

med the judgme nt to delete the conviction for indece ncy with a child, these arg uments are now m oot. We

overr ule I ssue Thre e. CONCLUSION The conviction for indece ncy with a child by contac t ( Count V) is r ever sed. We a ffirm therema inder of the judgme nt.

Aug ust 26, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)