0 

### CASE NO. PD-0601-15

______________________________ _______________________________ ON APPEAL FROM CAUSE NO. 12-13-00241-CR
IN THE 12 TH 

### COURT OF APPEALS, TYLER, TEXAS APPEALED FROM CAUSE NO. 9953 258 TH 

### JUDICIAL DISTRICT COUR T, TRINITY COUNTY, TEXAS

________________________________ ________________ ______________ JAMES SCOTT FRELS, Appellant
VS. THE STATE OF TEXAS, Appellee

______________________________ _______________________________ APPELLANT’S PETITION FO R DISCRETIONARY REVIEW

________________________________ _____________________________ Albert J. Charanza Jr. CHARANZA LAW OFFICE, P.C. P. O. Box 1825 Lufkin, Texas 75902 936/634-8568 936/634-0306 (FAX) SBN: 00783820 ORAL ARGUMENT REQUESTED PD-0601-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/24/2015 4:10:13 PM Accepted 6/25/2015 4:54:10 PM

ABEL ACOSTA CLERK1 

### TABLE OF CONTENTS Identity of A ll Partie s ................................................................................................. 3 Index of Aut horities .................................................................................................. 4 Statement Regarding Oral Argum ent ........................................................................ 6 Statement of the Case ................................................................................................. 6 Statement of the Pro cedural Hi story .......................................................................... 7 Grounds for Review ................................................................................................... 7 Ground for Revie w No. 1 ........................................................................................... 8 Does the holding in Yarbrough v. State violate due process the Texas Constitution and United States Constitution and Texas law? Does the failure to instruct the jury on established statutory conditions of supervision of a sex offender violate due process the Texas Constitution and United States Constitution? Ground for Review No. 2 ........................................................................................ 16 Did the appellate court err in finding sufficient evidence of “penetration” to support the conviction for aggravated sexual assault of a child? Ground for Review No. 3 ......................................................................................... 19 Did the appellate court err in finding no err in upholding the admission of the SANE report? Argument.................................................................................................................. 21 Prayer ....................................................................................................................... 22 Certificate of Service ............................................................................................... 232 

### Certificate of Co mpliance ....................................................................................... 24 Appendix ................................................................................................................. 253 

### IDENTITY OF ALL PARTIES Pursuant to Tex.R.App.P. 55.2(a), the fo llowing is a list of parties to the trial court’s judgment and the names and addr esses of trial and appellate counsel.
1. James Scott Frels, TDCJ # 01843329 Appellant Stiles Unit 3060 FM 3514 Beaumont, Texas 77705 2. Albert J. Charanza, Jr., Couns el for Appellant at trial and appeal P.O. Box 1825 Lufkin Texas 75902 (936) 634-8568 3. Bennie Shiro, Counsel for The State of Texas at trial and on appeal District Attorney for Trinity County P.O. Box 400 126 W. 1st Groveton, Texas 75845 (936) 642-2401 4. The Honorable Eli zabeth Coker, Trial Judge 258 th 

### Judicial District Court P.O. Box 1079 101 West Mills Street, Suite 286 Livingston, Texas 77351 (936) 327-68474 

### INDEX OF AUTHORITIES
CASES: PAGE Yarbrough v. State , 779 S.W.2d 844 (Tex. Cr im. App. 1989) ................................ 10 Yarbrough v. State , 742 S.W.2d 62, 64 (Tex. App.--Dallas 1987) ......................... 10

Brass v. State , 643 S.W.2d 443 ( 1982) .................................................................... 11
Flores v. State , 513 S.W.2d 66 (Tex. Cr im. App. 1974) ......................................... 11 Luquis v. State , 72 S.W.3d 355, 357 (Tex. Crim. App. 2002) ............ 13,14,15,16, 21
Jimenez v. State, 419 S.W.3d 706, 714 (Tex. App.-Hous ton 2013, pet. ref’d) ....... 17
Cornet v. State , 359 S.W.3d 217, 226 (Tex. Crim. App. 2012) .............................. 17 See Villalon v. State , 791 S.W.2d 130, 133 (Tex. Crim. App. 1990) .................. 17
Ortiz v. State , 834 S.W.2d 343, 348 (Tex.Cri m.App App. 1992) ........................... 19
Blasdell v. State , 384 S.W.3d 824, 831 (Tex. Crim. App. 2012) ............................ 20

RULES:
TEX. CODE CRIM. PR OC. ANN. art. 42 .12 § 11 ............................................. 8, 12
TEX. CODE CRIM. PROC. A NN. art. 37.07 ...................................................... 9,14
TEX. CODE CRIM. PR OC. ANN. art. 37 .07 §3(b) ............................................... 10
TEX. CODE CRIM. PR OC. ANN. art. 37 .07 §4(a) ........................................... 13,15
TEX. CODE CRIM. PR OC. ANN. art. 36 .14 ............................................... 9,14, 22
TEX. CODE CRIM. PROC. ANN. § 1.03 (5), 104, 105 ......................... 10,13,14, 225 

### TEX. CODE CRIM. PR OC. ANN. art. 42.12 ................................................... 13,14
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 13 (B), (G) .............................. 12,13
TEX. CODE CRIM. PR OC. ANN. art. 42 .12 § 11 ............................................ 13,14
TEX. CODE CRIM. PR OC. ANN. art. 42 .12 § 2, 4 ............................................... 13 TEX. CONST. art. I, § 10, 19. ......................................................................... 9,13,14
TEX. CONST. art. I, § 13 .................................................................................. 13, 21 U.S. CONST. amend. V, VI ...................................................................... 9, 13,14, 21
U.S. CONST. ame nd. XIV ...................................................................................... 146 

### TO THE HONORABLE COURT OF CRIMINAL APPEALS: Comes now JAMES SCOTT FRELS, by and through his Attorney of Record, and respectfully urges this Court to grant discretionary review of the above named cause, pursuant to the rules of th e Texas Court of Criminal Appeals. STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested since the i ssues on appeal address constitutional issues as raised in this petition. STATEMENT OF THE CASE On September 6, 2012, Defendant was arraigned by the trial court on a four count indictment issued on April 19, 2012 alleging Aggravated Sexual Assault of a Child and Indecency with a Ch ild. (CR 3-5) On February 28, 2013, the trial court granted the State’s Motion to Amend Indi ctment. (CR 22-25) On March 4, 2013, a jury was selected and jury trial began. Frels pled guilty to Count II and not guilty to all other counts. On Ma rch 6, 2013, the jury return ed a verdict of guilty to Counts I and IV and not guilty to Count III. (CR 47-50, Vo l. 5) The jury assessed punishment. (CR 34) Frels was sentenced to twenty (20) years on Count II and seventy-five (75) years on Counts I a nd IV. (Vol.6, CR 47, 51, 72-73) On March 26, 2013, Frels filed his Motion for New Trial alleging newly discovered evidence provided by the Trinity County District Attorney’s Office regarding a subsequent interview by Silver Choate aka Alice Smith that had not7 

### been disclosed to the defense. (CR 61-63) Silver Choate elected not to use a pseudonym. On May 16, 2013, the trial c ourt denied the Motio n for New Trial. (CR 62) On May 24, 2013, Frels filed his No tice of Appeal. (CR 65, 75) On April 22, 2015, the 12 th 

### Court of Appeals affirmed the conviction. STATEMENT OF PROCEDURAL HISTORY Scot Frels was charged by indictment with Aggravated Sexual Assault of a Child and Indecency with a Child that allegedly occurred on February 9, 2012. From March 4-6, 2013, a jury trial was held. Frels pled guilty to Count II, Indecency with a Child by Contact and not guilty to all other counts. The jury returned a verdict of guilty to Counts I and IV and not gu ilty to Count III. The jury assessed punishment and sentenced Frels to prison. On May 16, 2013, the trial court denied the Motion for New Trial. On May 24, 2013, Frels filed his Notice of Appeal. On April 22, 2015, the 12 th 

### Court of Appeals affirmed the conviction in an unpublished opinion. On May 22, 2015, this Cour t granted an extension to file this petition to June 22, 2015. Frels request th e court to grant his motion to extend the deadline by two days and accept his Petition for Discretionary Review. GROUNDS FOR REVIEW Ground for Review No. 1 – Does the holding in Yarbrough v. State violate due process the Texas Constitution and Unite d States Constitution and Texas law?8 

### Does the failure to instruct the jury on established statutory conditions of supervision of a sex offender violate due process the Texas Constitution and United States Constitution? Ground for Review No. 2 – Did the appella te court err in finding sufficient evidence of “penetration” to support the c onviction for aggravated sexual assault of a child Ground for Review No. 3 – Did the appella te court err in finding no err in upholding the admission of the SANE report GROUND FOR REVIEW NO. 1 Does the holding in Yarbrough v. State violate due process the Texas Constitution and United States Constitution and Texas law? Does the failure to instruct the jury on established statutory conditions of supervision of a sex offender violate due process the Texas Constitution and United States Constitution? The Court of Criminal Appeals has not addressed the issue of instructing a jury to include conditions of community s upervision in its punishment charge since 1989. The courts of appeal generally hold that an appellant has not directed them to any authority that requires a trial c ourt to include conditions of community supervision in its punishment charge to a jury. See T EX


### . C ODE 

### C RIM


### . P ROC


### . A NN


### . art 42.12, § 11(a) (stating "[t]he judge may impose any reasonable condition"). A trial court determines what conditions to in clude and what to leave out in ordering community supervision. See id . (stating that "[t]he judge of the court . . . shall determine the conditions of community supervision").9 

### However, jury charges in criminal cases are incomplete based on the statutory requirements of Article 37.07, Texas Code of Crim inal Procedure, and Article 36.14, Texas Code of Criminal Procedure. Under Article 36.14, the purpose of a charge is to provide the jury with the statutory law applicable to the case to guide them in their deliberations and not expressing any opinion as to the weight of the evidence. “S ubject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge dis tinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence , not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.” Tex. Code Crim. Proc. art. 36.14. (Emphasis added) The court, by denying the requested de fense punishment instructions, did not provide all the relevant law related to the case since Frels was eligible for community supervision. Th e charge unfairly was weighted to the jury consider only imprisonment and not consider the f actors of community supervision based on the charge submitted. This failure to in struct the jury on the law of community supervision violated Frels right to a fair trial under Articles I, §§ 10 and 19 of the Texas Constitution, the 5 th 

### and 6 TH 

### amendments of the U.S. Constitution and Texas10 

### Code of Criminal Procedure § 1.03(5) (right to a fair and impartial trial), 1.04 (due course of law), 1.05 (rights of the accu sed). The trial court and appellate court erred in denying the relevant provisions of the law as applied to this case and therefore committed harmful an d reversible error. “After the introduction of such evidence has been concluded, and if the jury has the responsibility of assessing the pun ishment, the court shall give such additional written instructions as may be necessary and the order of procedure and the rules governing the conduct of the trial shall be the same as are applicable on the issue of guilt or innocence.” Tex. Code Crim. Proc. art. 37.07 § 3(b)
In Yarbrough v. State , 779 S.W.2d 844 (Tex. Crim. App. 1989), the Court of Criminal Appeals agreed with a decision by the Dallas Court of Appeals that held that the trial court was not required to submit the statutor y terms of probation in the jury charge on punishment. Yarbrough , 779 S.W.2d at 845 (agreeing with court of appeals that conditions of probation need not be included in jury charge); Yarbrough v. State , 742 S.W.2d 62, 64 (Tex. App.--D allas 1987) (holding trial

court was not required to submit probation conditions in jury charge), pet. dism'd, improvidently granted , 779 S.W.2d 844 (Tex. Crim. App. 1989). In Yarbrough , the Court specifically overruled Brass v. State , 643 S.W.2d 443 (1982), a prior court of appeals decision that held that an accused is "entitled to have all of the allowable statutory terms and conditions of probation enumerated in the court's11 

### charge to the jury upon a proper objection or request." See Yarbrough , 779 S.W.2d at 844 (overruling Brass v. State , 643 S.W.2d 443 (1982), that held conditions of probation must be included in charge); see also Brass v. State , 643 S.W.2d 443, 444 (Tex. App.--Houston [14th Dist.] 1982, pet. ref'd) (finding error where trial court denied defendant's reque st to submit conditions of probation in jury charge), overruled by 779 S.W.2d 845 (Tex. Crim. App. 1989). The court of appeals decision in Brass stemmed from its interpretation of Flores v. State , 513 S.W.2d 66 (Tex. Crim. App. 1974), where the Cour t of Criminal Appeals endorsed the enumeration of probationary conditions in the jury charge. See Flores v. State , 513 S.W.2d 66, 69 (Tex. Crim. App. 1974) (findi ng that although "it is considered good practice to enumerate in the court's charge the probationary conditions which the court may impose if probation is r ecommended by the jury, the failure to so enumerate the said conditions is not ha rmful to the accused"). Despite this endorsement, it has been argued that no stat ute or decision requires the trial court to include conditions of probation in the jury charge and trial courts do not err in not providing the conditions of probation be included in the jury charge, nor has fundamental error been shown in this issue on appeal. Cf. McNamara v. State , 900 S.W.2d 466, 468 (Tex. App.--Fort Worth 1995, no pet.) (holding that failure to enumerate conditions of probation in charge is not harmful); Saenz v. State , 879 S.W.2d 301, 306 (Tex. App.--Corpus Christi 199 4, no pet.) (stating that trial court12 

### need not inform jury of any c onditions of probation in charge); Herrera v. State , 848 S.W.2d 244, 248 (Tex. A pp.--San Antonio 1993, no pet.) (determining that omission of conditions of probation from ju ry charge is not fundamental error). During the punishment charge conference , Frels objected to the jury charge for not including all the statutory cond itions of community supervision or an intoxication instruction. On March 6, 2013, Frels submitted proposed written detailed jury instructions applicable to the punishment phase regarding the applicable conditions of community superv ision in a case involving sex offenders. (CR 35-39, Vol. 6, pp. 66-68, CR 35-39) The court overruled his objections. (Vol. 6, p. 68) Frels was found guilty of a sex offense involving a child and the supervision conditions reque sted by the Frels were ta ken from Article 42.12 § 13B and 42.12 § 13G of the Texas Code of Criminal Procedure. These conditions are in addition to the standard basic conditi ons of community supervision applicable under 42.12, § 11. The court’s punishment charge in this case contained neither the standard conditions of supervision under § 11 or the specific sex offender conditions under Article 42.12 § 13B and 42. 12 § 13G. Frels listed 24 different conditions that could apply to someone on supervision in for a sex offense against a child. (Vol. 6, p. 66) The charge only provided the statuatory language of community supervision found in 42.12 § 2 and 4 “community supervision shall be granted by the Court if the jury recommend supervision” as required under Article13 

### 42.12, § 2 and 4. Since the court was w illing to include the provisions of Article 42.12 § 2 and 4, it was re versible error, and an abuse of discretion, to keep out the statutory law under Article 42.12 § 11 and those under §§ 13B and 13G which apply to sex offenders. The court placed the provisions relate d under Article 37.07 § 4 relevant to parole but failed to inform the jury about all the poten tial applications of the law under Article 42.12 as to th e conditions of community supervision. The court committed reversible error by overruli ng Frels requested written instructions, including the applications for parole and not the potential applications of community supervision. If the courts in Texas are instructed to provide the jury the law applicable to the case, then the courts need to provide the jury all the statutory law and not just part of the law. Yarbrough needs to be overruled or clarified to address the current statutory la w in Texas as it applies to punishment in criminal cases.
In Luquis v. State , 72 S.W.3d 355, 357 (Tex. Crim . App. 2002), this Court concluded that the parole law charge was not unconstitutional, and thus it was not error for the trial court to include the legislatively-mandated instruction in its punishment charge. In this case, Frels argue s that it is a violation of a defendant’s due process rights as guaranteed under Article 1, § 13 & 19 of the Texas Constitution, the 5 th 

### &14 th 

### Amendments of the U.S. Constitution and Texas Code14 

### of Criminal Procedure § 1.04 by not pr oviding the statutory law under Article 42.12 in a jury charge. It is a fundamen tal legal precept that no person shall be deprived of life, liberty, or property w ithout due process and due course of law. U.S. CONST. amends. V, XIV; TEX. CONS T. art. I, § 19; TEX. CODE CRIM.
PROC. ANN. art. 1.04 (Vernon 2014). By way of example, the constitution of parole law is mandated under Article 37.07 but trial courts ignore, and are no t required to provide, the statutory law mandated by Article 42.12 when instructing the jury of the applicable law as required under Article 36. 14. It is absurd to require parole law instructions to be given and not provide the law that applies to community supervision. The law is the law. Either provide the jury all the law or none of the law. Clearly, the courts want Texas juries to have all the law. The trial and appellate court erred in not requiring all the law of Texas to be given to the jury in this case. The error was harmful on a constituti onal basis because it denied Frels right to a fair trial under Articles I, §§ 10 and 19 of th e Texas Constitution, the 5 th 

### and 6 TH 

### amendments of the U.S. Constitution and Texas Code of Criminal Procedure § 1.03(5) (right to a fair and impartial trial) 1.04 (due course of law), 1.05 (rights of the accused) . The statutory parole charge, as provided in this case, instructs a jury in very general terms about the existen ce and possible grant of parole. Luquis v. State , 72 S.W.3d 355, 360 (Tex. Crim. App. 2002). Th e statutory parole charge, Tex. Code15 

### Crim. Proc. Ann. art. 37.07, § 4(a), instruct s a jury in very general terms about the existence and possible grant of parole. It explicitly informs the jury that persons such as appellant are ineligible for releas e on parole until they have served one-half of their sentence or thirty years, whichever is less. The instruction also refers to the concept of "good conduct time" and states that a person sentenced to prison might earn some reduction in his period of in carceration (though not a reduction of his sentence) through the discretionary aw ard of good conduct time. The final two paragraphs of the instruction clearly warn the jury that neither they, nor anyone else, can accurately predic t how the concepts of "go od conduct time" or parole might be applied to any pa rticular person and thus they may not consider how those concepts might apply to the defendant. Id.
In Luquis v. State , 72 S.W.3d 355, 357 (Tex. Cr im. App. 2002), this Court stated: The Texas Legislature enacted legislation that requires the trial judge to instruct the jury in the precise wording that th e statute recites. Article 37.07, section 4(a) sets out, verbatim, the words that the trial judge is to use. There are even quotation marks around the wording of the instruction. That is at least some indication that the Legislature did not want any creative deviations from its chosen language. Th e Legislature prefaced its instruction language with directions that "the court shall charge the jury in writing as follows: ..." The use of the word "sha ll" generally indicates a mandatory duty. There is no reason to think that the Legislature enacted merely a suggested parole law jury instruction, one that trial judges should cut and paste as they see fit. Trial judges, then, ar e faced with a dilemma. If they do not give the statutorily mandated instruction, they vi olate the Legislature's law. If they do give the instruction, defendants such as appellant and those similarly situated16 

### may claim that portions of the in struction might be misleading and inapplicable to them. Trial judges ma y occasionally doubt the wisdom of a particular law, but they are not free to ignore explicit legislative directions unless those directives are clearly unc onstitutional. Therefore, because the trial judge in this case instructed the ju ry according to the legislative dictate expressed in article 37.07, secti on 4(a), he did not commit error. The legislatively mandated instruction in forms the jury about parole and good conduct time generally, but it al so explicitly tells them not to consider the manner in which the parole law or good conduct time might be applied to this particular defendant. Luquis v. State , 72 S.W.3d 355, 364 (Tex. Crim. App. 2002) The purpose of a criminal jury charge is to give the jury the statutory law applicable to the case to guide them in their deliberations. The court, by denying the written requested instructions, did not pr ovide all the relevant law related to the case since Frels was eligible for community supervision. The charge in this case was unfairly weighted to the jury considering only imprisonment and not considering the factors of community s upervision based on the charge submitted by the court. The court erred in denying the relevant provisions of the law as applied to this case and therefore comm itted harmful reversib le error. GROUND FOR REVIEW NO. 2 Did the appellate court err in finding s ufficient evidence of “penetration” to support the conviction for aggravated sexual assault of a child The issue in this case was whether pe netration occurred was contested. Silver Choate testified that Frels was not just touching her with his “thingy,” but17 

### was “pushing it” while on top of her, and that he was trying to “push his thing into [her] private part.” When asked why he stopped, she replie d, “[H]e said it wouldn’t go in.” However, she testified that he tried “to push his thing in” for a couple of minutes. Frels was unable to achieve an erection and could not penetrate the victim’s sexual organ. The appellate court noted that “[t]hough penetration is an element of aggravat ed sexual assault, erection is not.” Jimenez v. State, 419 S.W.3d 706, 714 (Tex. App.—Houst on [1st Dist.] 2013, pet. ref’d). Citing Cornet v. State , 359 S.W.3d 217, 226 (Tex. Crim. App. 2012), “penetration” of the female sexual organ occurs when there is “tactile contact beneath the fold of complainant’s extern al genitalia.” The act of “pushing aside and reaching beneath a natural fold of sk in into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact” and constitutes penetr ation for purposes of the sexual assault

statute. Id. Contact regarded as more intrusive th an contact with the victim’s outer vaginal lips amounts to penetrati on of the female sexual organ. Id. Although the state may prove penetration by circumstantial evidence, and the victim need not testify as to penetration, the evidence must prove penetration beyond a reasonable doubt. See Villalon v. State , 791 S.W.2d 130, 133 (Tex . Crim. App. 1990) Frels “tried to insert [his] penis into her vagina, but could not get it in.” He said he “was too drunk to get a full erecti on,” but that he was “semi-erect.” He also18 

### admitted in the second statement that he “rubbed the lips of her vagina.” In contrast, at trial, he testifie d that he was totally unable to obtain an erection, even though he admitted to placing a condom on his penis. Specifically, Frels testified that he “got her in the missionary positi on and attempted to penetrate her and due to [his] intoxication [he] just was fl accid and could not do anything.” This contradicts his second written statement in which he stated that he was “semierect.” Emily May, the nurse conducting a Sexual Assault Nurse Examination (SANE), testified she observed redness and abrasions in the “left exterior facet” of the victim’s sexual orga n, along with two hymeneal tears. The location of the tears in the hymen indicated they occu rred while the patient was lying in a supine position. She also testified that in order for there to be injuries to the hymen, something would have to penetrat e the labia. She indicated that the injuries were recent; however she could not determine when or how the physical observations occurred. She also opined that the injuries were consistent with penetration by a penis, and the penis must be erect in order to cause the injuries suffered which was not consistent with th e testimony at trial. Additionally, May confirmed that the injuries could have occurred from self-exploration and that no other sexual trauma was noted.19 

### Based on Frels and Choate’s testimony, penetration did not occur. The testimony did not support the element of pene tration. The appella te court erred in holding that “the jury could have rati onally concluded that Appellant’s sexual organ had tactile contact beneath the fold of the victim’s external genitalia, that the contact was more intrusiv e than contact with the victim’s outer vaginal lips, and that he pushed aside and reached beneath a natural fold of skin into an area of the body not usually exposed to view. Consequently, the jury could have rationally concluded that Ap pellant penetrated the vict im’s sexual organ.” The court of appeals is assuming facts not in evid ence in the trial of this case. Choate’s testimony does not support the court’s opinio n and it is reversible error since the element of penetration was not proven beyond a reasonable doubt. GROUND FOR REVIEW NO. 3 Did the appellate court err in finding no err in

upholding the admission of the SANE report In this case, the issue of pe netration was hotly contested. Frels filed a pretrial written objection to the SANE repo rt as inadmissible hearsay because the SANE report checked off a box of the repor t indicating penetrati on. The appellate court, citing Ortiz v. State , 834 S.W.2d 343, 348 (Tex.Crim.App App. 1992), opined that the report was allowed under the Ru les of Evidence as an expert report. The SANE nurse, Emily May, testified. The appellate cour t also opined the objection to the SANE report was not pres erved. Frels filed a written pretrial20 

### objection that was overruled by the court. Du ring the trial, Frels counsel pointed to the specific objectionable portion of the SANE record relating to penetration which was overruled. (Vol. 4, p. 43) Given the content of the expert testimony, the context in which it was offered, and, most pertinently, th e lack of other evidence to establish penetration by the defendant, the a ppellate court erred in concluding that this opinion was not objectionable. Not all expert testimony that is logically "relevant" will invariably serve to "a ssist" a jury for purposes of Rule 702. Blasdell
v. State , 384 S.W.3d 824, 831 (Tex. Crim. App. 2012). “A judicious application of the Rule 702 helpfulness standard and Ru le 403 balancing factors is necessary. Such determinations must necessarily be re solved on a case-by-case basis, as they will depend upon factors such as the content of the testimony, the context in which it is offered, and the state of the evidence.” Id. In Blasdell v. State , 384 S.W.3d 824, 826 (Tex. Crim. App. 2012), this Court held the court of appeals erred in concluding that the forensic psychologist 's weapon focus effect testimony was not relevant to the issues in the case. Blasdell v. State , 384 S.W.3d 824, 826 (Tex. Crim. App. 2012) As the quantity a nd quality of evidence establishing a defendant's identity as the perpetrator of the charged offe nse increases, the possibility that expert testimony will facil itate the jury's resolution of a contested issue related to the charge that issue w ill decrease concomitantly. At some point, a trial court may decide that the expert testimony is, on balanc e, insufficiently21 

### helpful to the jury's resolution of the issu e to justify the time and resources it would take to present it at trial. Such a decision under Rule 702 would fall squarely within the zone of reasona ble disagreement. Id. In this case, the decision of whethe r penetration occurred with a flaccid penis was to be determined from the testimony of the fact witnesses, Silver Choate and Scott Frels. It was reversible error to admit State’s Exhibit 6, the SANE report over defendant’s objection. ARGUMENT Since 1989, the appellate courts have followed the Court of Criminal Appeals affirmation that instructing a ju ry to include conditions of community supervision in its punishment charge should not be included. Ho wever, in 2002, in Luquis v. State , 72 S.W.3d 355, 357 (Tex. Crim. Ap p. 2002), this court mandate that parole be given to the jury in the puni shment phase of a tria l. The trial court, by denying Frels requested defense punishment instructions, did not provide all the relevant law related to the case since Frels was eligible for community supervision. The charge unfairly was weighted to th e jury consider only imprisonment by emphasizing the applicable parole law an d not consider the law and factors of community supervision based on the charge s ubmitted. This failure to instruct the jury on Texas law of community supervisi on violated Frels right to a fair trial under Articles I, §§ 10 and 19 of the Texas Constitution, the 5 th 

### and 6 TH22 

### amendments of the U.S. Constitution and Texas Code of Criminal Procedure § 1.03(5) (right to a fair and impartial trial) , 1.04 (due course of law), 1.05 (rights of the accused). The courts of appeal ha ve been erring in holding that appellants have not directed them to any authority that requi res a trial court to include conditions of community supervision in its punishment ch arge to a jury. Frels has established that under Article 36.14, the purpose of a ch arge is to provide the jury with the statutory law applicable to the case to gui de them in their deliberations and not expressing any opinion as to the weight of the evidence. Yarbrough v. State violates due process as guaranteed unde r the Texas Constituti on, United States Constitution and Texas law and emphasizes parole law over the law of community supervision. The failure to instruct the jury on established statutory conditions of supervision of a sex offender violates due process the Texas Constitution and United States Constitution and Frels suffe red harmful error in not having his requested instructions. PRAYER FOR RELIEF WHEREFORE, Appellant prays the Cour t of Appeals grant this petition for Discretionary review and this Court revers e the decision of the Court of Appeals.23 

### Respectfully submitted, /s/Albert J. Charanza, Jr. ALBERT J. CHARANZA, JR. CHARANZA LAW OFFICE, P.C. P.O. Box 1825 Lufkin, Texas 75902 936-634-8568 936-634-0306 (fax) State Bar No. 00783820 Attorney for James Scott Frels CERTIFICATE OF SERVICE The undersigned hereby certifies that on this day June 24, 2015 the Petition for Discretionary Review was filed electronica lly with the Clerk of the Court of Criminal Appears at Court of Criminal Appeals Of Texas, P.O. Box 12308, Capitol Station, Austin, Texas 78711 for filing and handling in that Court pursuant to Tex.R.App.P. 68.7 of the Texas Rules of Appellate Procedure. (2) Pursuant to Tex.R.App.P. 68.11, a legible c opy of said petition has been mailed by U.S. Mail to:

LISA MCMINN STATE PROSECUTING ATTORNEY P.O. BOX 13046 AUSTIN, TEXAS 78711
BENNY SHIRO DISTRICT ATTORNEY TRINITY COUNTY P.O. BOX 400 GROVETON, TEXAS 75845 /s/Albert J. Charanza, Jr. ALBERT J. CHARANZA, JR. CHARANZA LAW OFFICE, P.C.24 

### CERTIFICATE OF COMPLIANCE I certify that this document contains 4,277 words, countin g all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in 14 point font. /s/Albert J. Charanza, Jr. ALBERT J. CHARANZA, JR. CHARANZA LAW OFFICE, P.C.25 

### APPENDIX
1. Memorandum Opinion Issued on April 22, 2015.

## NO. 12
- 13
- 00241
- CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES SCOTT FRELS, APPELLANT
V. THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 258TH

JUDICIAL DISTRICT COURT

TRINITY COUNTY, TEXA S
MEMORANDUM OPINION James Scott Frels appeals his convictions and sentences for aggravated sexual assault of a child and his sentence for indecency with a child. He raises six issues on app eal. We affirm.

B ACKGROUND Appellant met the victim’s mother on an online dating site. After a two and a half month period of social interaction, Appellant took the victim and her mother to a bar. While at the bar, Appellant paid for several alcoholic beverages that all three of them drank. Appellant’s adult son, who resided at Appellant’s home at the time, later arrived at the bar. He drank only one beer while there. The group decided to leave, and Appellant drove the victim and her mother to his ho me. Appellant’s son returned to the home in his own vehicle. The exact events that occurred next were disputed, but it is undisputed that Appellant committed sexual acts with the thirteen year old victim in his bedroom. The next day, Appellant’s son, a witness to the events, reported his father’s conduct to law enforcement. Later that day, Appellant voluntarily provided two written statements within a three hour period. In the first statement, Appellant admitted no wrongdoing. In the second, he admitt ed engaging in sexual acts with the victim. The officers subsequently arrested Appellant.2

A grand jury charged Appellant in a four count indictment for various sexual acts with the victim. Specifically, Appellant was indicted for indecency with a child t hrough sexual contact by touching the child’s genitals, a second degree felony as alleged (count two). The remaining three counts alleged that Appellant committed the first degree felony offense of aggravated sexual assault of a child under the age of fou rteen by penetrating the child’s sexual organ with his sexual organ (count one), causing the sexual organ of the child to contact his mouth (count three), and causing the sexual organ of the child to contact Appellant’s sexual organ (count four). Just as Appellant’s jury trial began, he pleaded guilty to the indecency with a child allegation in count two. The trial proceeded on the three aggravated sexual assault offenses. The jury found Appellant guilty of counts one and four, and not guilty of count th ree. After a punishment hearing, the jury sentenced Appellant to twenty years of imprisonment and a $10,000.00 fine on count two, and seventy

- five years of imprisonment with no fine on counts one and four respectively. The trial court ordered that all se ntences be served concurrently. Appellant filed a motion for new trial alleging that the victim, in a posttrial interview, stated for the first time that Appellant and the victim had an additional sexual encounter prior to the date alleged in the indictme nt. After a hearing, the trial court denied the motion. This appeal followed.

I NSUFFICIENT E VIDENCE OF P ENETRATION In his fourth issue, Appellant argues that the evidence is insufficient to support a finding that he penetrated the victim’s sexual organ as alleged in count one of the indictment

. Standard of Review In reviewing the sufficiency of the evidence, the appellate court must determine whether, considering all the evidence in the light most favorable to the verdict, the jury was rationally justif ied in finding guilt beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State , 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The duty of a reviewing court is to ensure that the eviden ce presented actually supports a conclusion that the defendant committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).3

Considering the evidence “in the light most favorable to the verdict” under this standard requir es the reviewing court to defer to the jury’s credibility and weight determinations, because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Brooks , 323 S.W.3d at 899; see Jackson , 443 U.S. at 319, 99 S

. Ct. at 2789. This familiar 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 the basic facts to ultimate facts. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789. “[A] court faced with a record of historical facts that supports conflicting inferences must presume

— even if it does not affirmatively appear in the record

— that the trier of fact resolved any such conflicts in favor of the pros ecution, and must defer to that resolution.” Id
. , 443 U.S. at 326, 99 S. Ct. at 2793. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and can alone be sufficient to establish guilt. Hooper v. State , 214 S .W.3d 9, 13 (Tex. Crim. App. 2007). Applicable Law To satisfy the elements of aggravated sexual assault of a child as alleged in count one of the indictment , the State was required to prove that Appellant intentionally or knowingly penetrated the sexual or gan of the victim, a child under fourteen at the time, with his sexual organ. See T EX
. P ENAL C ODE A NN
. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2014). Within the context of sexual assault, “penetration” of the female sexual organ occurs when there is “ tactile contact beneath the fold of complainant’s external genitalia.” Cornet v. State , 359 S.W.3d 217, 226 (Tex. Crim. App. 2012). The act of “pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view , even in nakedness, is a significant intrusion beyond mere external contact” and constitutes penetration for purposes of the sexual assault statute. Id. Contact regarded as more intrusive than contact with the victim’s outer vaginal lips amounts to pene tration of the female sexual organ. Id. The state may prove penetration by circumstantial evidence, and the victim need not testify as to penetration. See Villalon v. State , 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Murphy v. State , 4 S.W.3d 926, 929 (Tex. App.

— Waco 1999, pet. ref’d). Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it is shown beyond a reasonable doubt. Luna v. State , 515 S.W.2d 271, 273 (Tex. Crim. App. 1974).4

Discussion Appellant argues tha t the evidence is insufficient to support the jury’s finding that he penetrated the victim’s sexual organ with his sexual organ. The evidence, viewed in the light most favorable to the verdict, shows that a few weeks before the incident, the victim’s moth er mentioned to the victim that she should have sex with someone experienced rather than someone who would hurt her. The mother suggested that Appellant should be that person. At the bar on the night of the offenses, Appellant and the victim’s mother ord ered approximately sixteen beers, six “Jell

- O shots,” and five “Smirnoff” malt beverages on Appellant’s credit card. The victim, a thirteen year old female, consumed all of the malt beverages. The victim testified that while at the bar, Appellant showed her his cell phone, which contained an unsent text message stating, “If you stay the night, I want you.” The victim testified further that her mother briefly passed out after they returned to Appellant’s home , and that Appellant grabbed the victim by the a rm and took her to his bedroom where they began engaging in sexual activities. Appellant’s son, who was present at the house at the time, testified that Appellant’s dog opened the door to the bedroom. Appellant’s son observed that a light was on, and he saw his father, nude, on top of the victim, who was also nude. He stated that he could not see actual penetration, but that he heard the victim ask Appellant to “take it out. It hurts.” He testified that Appellant was in between the victim’s legs and he r legs were around him at the time. The victim testified that Appellant was not just touching her with his “thingy,” but was “pushing it” while on top of her, and that he was trying to “push his thing into [her] private part.” When asked why he stopped, she replied, “[H]e said it wouldn’t go in.” However, she testified that he tried “to push his thing in” for a couple of minutes. The nurse conducting the Sexual Assault Nurse Examination (SANE) testified at trial that she examined the victim the day aft er the offenses took place. She testified that she observed redness and abrasions in the “left exterior facet” of the victim’s sexual organ, along with two hymenal tears. In her written report, the SANE nurse noted that it was too painful for the victim to accommodate the speculum in her vagina as part of her exam, and that there was also redness and an abrasion to the perineum on her “posterior fourchette.” She testified that the location of the tears in the hymen indicated they occurred while the patie nt was lying in a supine position. She also testified that in order for there to be injuries to the hymen, something would have to5

penetrate the labia. She indicated that the injuries were recent because the tissues were red and tender to the touch, and there was no “rejuvenation tissue” present. She also opined that the injuries were consistent with penetration by a penis, and the penis must be erect in order to cause the injuries suffered. Appellant points to his written statements and his testimon y, along with similar testimony from the victim, that he was unable to achieve an erection and could not penetrate the victim’s sexual organ. We note that “[t]hough penetration is an element of aggravated sexual assault, erection is not.” Jimenez v. Stat e , 419 S.W.3d 706, 714 (Tex. App.

— Houston [1st Dist.] 2013, pet. ref’d). Turning to his written statements, Appellant denied any wrongdoing in his first statement. He admitted in his second statement, which was voluntarily given approximately three hour s after his first statement, that he “tried to insert [his] penis into her vagina, but could not get it in.” He said he “was too drunk to get a full erection,” but that he was “semi

- erect.” He also admitted in the second statement that he “rubbed the lip s of her vagina.” In contrast, at trial, he testified that he was totally unable to obtain an erection, even though he admitted to placing a condom on his penis. Specifically, Appellant testified that he “got her in the missionary position and attempted to penetrate her and due to [his] intoxication [he] just was flaccid and could not do anything.” This contradicts his second written statement in which he stated that he was “semi

erect.” It is within the province of the jury as factfinder to resolve conf licts in the testimony and the evidence. See Jackson, 443 U.S. at 319, 326, 99 S. Ct. at 2789, 2793. Given the evidence it heard, the jury could have disbelieved Appellant’s testimony at trial that he was unable to penetrate the victim. Finally, Appella nt also points to the lack of DNA testing on buccal swabs taken from the victim, but the victim and Appellant both testified that he used a condom. It does not appear from the record that the authorities recovered the condom used in the incident. The SAN E nurse concluded that DNA testing was unlikely to be helpful because Appellant used a condom. The jury could have reasonably inferred that the fact that Appellant used a condom precluded the recovery of useful DNA evidence that could exonerate him. Based on the evidence, the jury could have rationally concluded that Appellant’s sexual organ had tactile contact beneath the fold of the victim’s external genitalia, that the contact was more intrusive than contact with the victim’s outer vaginal lips, and tha t he pushed aside and reached beneath a natural fold of skin into an area of the body not usually exposed to view.6

Consequently, the jury could have rationally concluded that Appellant penetrated the victim’s sexual organ. See Cornet , 359 S.W.3d at 226. Appellant’s fourth issue is overruled.

A DMISSIBILITY OF SANE E XAM In his third issue, Appellant contends that the SANE report was inadmissible hearsay, a portion of the report invaded the province of the jury, and the report also improperly bolstered the victim’s testimony. Standard of Review A trial court’s decision to admit evidence over an objection is reviewed for abuse of discretion. McCarty v. State , 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). If the decision of the trial court is within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it will be upheld on appeal. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Applicable Law To preserve a complaint for appellate review, the comp laining party must have presented a specific and timely request, motion, or objection to the trial court and, further, must have obtained an adverse ruling. See T EX
. R. A PP
. P. 33.1. The complaint on appeal must comport with the complaint made at trial. Lovill v. State , 319 S.W.3d 687, 691

– 92 (Tex. Crim. App. 2009). An “invading the province of the jury” objection is no longer recognized as a valid objection to opinion testimony. Ortiz v. State , 834 S.W.2d 343, 348 (Tex. Crim. App. 1992); Mock v. State , 848 S.W.2d 215, 225 (Tex. App.

— El Paso 1992, pet. ref’d); see also T EX
. R. E VID
. 704. “The doctrine which prohibited testimony that would invade the province of the jury ‘is and has been long dead’ as a proposition of law.” Mays v. State , 563 S.W.2d 260 , 263 (Tex. Crim. App. 1978) (quoting Boyde v. State , 513 S.W.3d 588, 590 (Tex. Crim. App. 1974)). Discussion In the first part of this issue, Appellant argues that the trial court improperly admitted the SANE report under the hearsay exceptions for busine ss records and for statements made for purposes of medical diagnosis or treatment. See T EX
. R. E VID
. 803(4), (6) (medical diagnosis or treatment and business records exceptions to hearsay rule). He contends that the exam was7

conducted for investigatory p urposes rather than for diagnosing or treating a medical condition of the victim. Appellant did not raise this objection at trial. However, he filed a pretrial written objection to the report on these grounds, but failed to secure a ruling on his objectio n. Consequently, Appellant waived this portion of his third issue, and we do not address it. See T EX
. R. A PP
. P. 33.1(a)(2)(A). In the second component of this issue, Appellant contends that the SANE nurse’s opinion, as expressed in her written report st ating, “‘Was there penetration?’ And it’s checked off: ‘Female sexual organ[,]’” invaded the province of the jury because it was an opinion on the ultimate issue to be decided by the jury. The fact that the nurse, in her report, states that there was pen etration is not objectionable on this ground, because the rules of evidence permit opinion testimony on ultimate issues of fact. See T EX
. R. E VID
. 704; Ortiz , 834 S.W.2d at 348. In the final component of his third issue, Appellant contends that “[w] hen a sexual abuse examination is at issue, and there is no physical evidence of abuse, the testimony of the sexual assault examiner can only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s t ruthfulness.” See Salinas v. State , 166 S.W.3d 368, 371 (Tex. App.

— Fort Worth 2005, pet. ref’d). Consequently, his argument continues, the portion of the SANE nurse’s report indicating that the victim’s sexual organ was penetrated is an improper comment on the victim’s truthfulness. We note that Appellant did not object to the report or the nurse’s testimony on this ground. His only objection was that it “invaded the province of the jury.” In other words, the argument made on appeal does not comport wi th the objection he made at trial, and therefore he has failed to preserve it. See Lovill , 319 S.W.3d at 691

– 92 (Tex. Crim. App. 2009). But even if we were to review that portion of this issue, Appellant has not demonstrated reversible error. While we a gree with the general statement of law relied upon by Appellant in Salinas , it is inapplicable here. Salinas is predicated on an absence of evidence of physical abuse. Salinas , 166 S.W.3d at 370

- 71. There, the nature of the alleged abuse left no physica l evidence. Id. at 370. Nevertheless, the trial court allowed the examining physician to testify that the victim was sexually assaulted solely on the basis of the child’s statements to the physician. Id. The court held that “[b]ecause there was no [phy sical evidence of sexual abuse], [the physician’s] testimony can only be seen as an [improper] attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” Id. at8

371. In this case, we have alrea dy described ample evidence of the sexual assaults, including the physical evidence of penetration from the SANE nurse’s testimony and report, along with Appellant’s own admissions of his attempts to sexually assault the victim. For that reason, the holdi ng in Salinas is inapplicable to the facts of the present case. Appellant’s third issue is overruled.

I MPROPER C LOSING A RGUMENT In his second issue, Appellant argues that the prosecutor improperly injected facts not in evidence during the closing argument on punishment and that he went outside the scope of permissible argument. Standard of Review We review a trial court’s ruling on an objection to improper jury argument for abuse of discretion. See Garcia v. State , 126 S.W.3d 921, 924 (Tex. Crim. App. 200 4). To preserve error in cases of improper prosecutorial argument, the defendant must, until he receives an adverse ruling , (1) make a timely and specific objection; (2) request an instruction that the jury disregard the matter improperly placed before th e jury; and (3) move for a mistrial. Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Cook v. State , 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). Applicable Law The law provides for, and presumes, a fair trial free from improper argument by t he prosecuting attorney. Long v. State , 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposi ng counsel; or (4) a plea for law enforcement. Brown v. State , 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Cannady v. State , 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). Counsel is generally given wide latitude in drawing inferences from evidence as long a s they are reasonable, fair, legitimate, and offered in good faith. See Gaddis v. State , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). It is improper for the state to argue that the community expects a certain verdict or punishment. See Borjan v. State , 7 87 S.W.2d 53, 56 (Tex. Crim. App. 1990). The state may, however, request the jury to represent or be the voice of the community when reaching its verdict. See Cortez v. State , 683 S.W.2d 419, 421 (Tex. Crim.9

App. 1984). The state may also properly remin d the jury that its decision can reflect a desire for strong law enforcement. See Goocher v. State , 633 S.W.2d 860, 864

– 65 (Tex. Crim. App. 1982). A plea for law enforcement is proper argument and may take many forms, including arguments that draw on the jury verdict’s impact on the deterrence of crime in general and the community at large. Borjan , 787 S .W.2d at 55

– 56 (observing that s tate may argue that jury should deter specific crimes by its verdict); Nelson v. State , 881 S.W.2d 97, 102 (Tex. App.

— Hous ton [1st Dist.] 1994, pet. ref’d). Moreover, matters of common knowledge may be incorporated into final argument without express support in the evidence. Carter v. State , 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981). Even when an argument excee ds the permissible bounds of proper argument, it is not reversible unless the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial new facts harmful to the accused. Wesbrook v. State , 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The remarks must have been a willful and calculated effort on the part of the state to deprive Appellant of a fair and impartial trial. Id. (citing Cantu v. State , 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). In determining whether im proper jury argument warrants a mistrial, we balance three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instructio n by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Discussion Appellant points to several statements by the pros ecutor during the punishment phase that he alleges are improper argument warranting a new trial. First, he alleges the argument that Appellant and the victim’s mother planned the sexual conduct is the injection of a new fact unsupported by the record. Th e evidence admitted at trial shows that this statement is both a summation of the evidence and a reasonable deduction from the evidence. As we have stated, the victim testified that a few weeks before the sexual assaults, her mother brought up the topic

o f sex and stated “better you do it with someone experienced than somebody that will hurt you.” She testified that her mother told her Appellant should be that person.10

On the night of the offenses, the victim’s mother actively assisted in her daughter’s intoxication. While the offenses occurred, Appellant’s son asked the victim’s mother why she let this happen, and in response, she tried to “calm [him] down.” Moreover, he testified that the victim’s mother was aware of the conduct, watched from the door way as it occurred, and did nothing to stop it. One of the investigating officers testified that the victim’s mother was arrested for endangering a child, and that he subsequently filed an additional charge against her for sexual performance of a child. T he victim testified at trial that her mother knew she was going into Appellant’s room. She also stated that her mother entered Appellant’s bedroom at or near the time the sexual acts happened or just as t hey concluded. Her mother got in the bed with her clothes off. Also, the victim testified that her mother asked her the morning after, without the victim’s raising it, whether Appellant “put his thingy in [her].” The victim replied “yes, but no.” She clarified that “yes, [he put his thingy inside,] but he said he didn’t.” Similarly, the SANE notes indicate that the victim said that her mother “came in and got in bed with [them as the sexual acts concluded]. [Appellant and the victim’s mother] started moving around. So [the victim] got up and went to sleep on the couch.” Finally, in Appellant’s first written statement, he said that Appellant’s son told him the following day that the victim’s mother watched through the door and asked his son to just “let it happen.” 1 The jury could reasonably infer from all this evidence that Appellant and the victim’s mother planned the encounter, which is a fair summation of the evidence and therefore a permissible basis for jury argument. Next, Appellant argues that the prosecutor improperly injected facts not in evidence by referring to a cable television program filmed in Trinity County, entitled Fat Cops , which humorously documents the daily lives of the City of Trinity’s residents and its police officers. The trial court sustained his objection, but Appellant did not request an instruction to disregard the comment or move for a mistrial. Consequently, he has waived this component of his second issue. See Cockrell , 933 S.W.2d at 89. Even if we were to address this portion of his second issue, we would concl ude that it was a proper plea for law enforcement. When reading the record as a whole, it is clear that the

1 Although Appellant acknowledged that his son told Appellant that he saw them having sex, Appellant denied having sex with th e victim.11

prosecutor used this reference to the program to compare the comedic nature of it with what he believed to be lax enforcement of sex crimes laws in the Trinity County area. The prosecutor urged the jury, who likely was aware of the program, that it should refrain from allowing the proceedings to become an episode of the show, and that it should enforce the law and levy a severe punishment. As we ha ve stated, a plea for law enforcement can take many forms. See Borjan , 787 S.W.2d at 55

– 56. W e cannot conclude that the prosecutor’s statement s were improper argument. Similarly, Appellant contends that the prosecutor acted improperly when he argued that he did not sleep well during the trial because he has worked hard and has “done everything [he] could do.” He argues that this is a plea for empathy in that the prosecutor asked the jury to assess a strict punishment because the prosecutor worked hard on presenting the case to them. However, read in context, the prosecutor further explained that he would sleep well the night that the trial concluded, because he fully presented his case, it was now in the jury’s hands, and it was the jury’s responsibility to administer justice. The prosecutor continued that justice should be achieved “for this victim in this case and also let’s punish this guy for what he did.” In the context in which it was made, the prosecutor’s statement is a proper plea for law enfor cement. Finally, even if the trial court erred in allowing the prosecutor to make the complained of arguments, the error would not result in a mistrial. The statements were brief, the trial court was not asked for curative instructions on any of the error s, Appellant never moved for a mistrial, and the evidence of guilt, which we have already described, is overwhelming. Appellant’s second issue is overruled.

T HE T RIAL C OURT ’ S C HARGE O N P UNISHMENT In his fifth issue, Appellant argues that the trial court e rred in failing to include all statutory terms and conditions of community supervision applicable to sex offenders in its charge to the jury on punishment. See, e.g., T EX
. C ODE C RIM
. P ROC

. A NN
. art. 42.12 §§ 11, 13(B), (G), (H), 14 (West Supp. 2014). The trial court is not required to list these terms and conditions as part of its charge to the jury on punishment, and the trial court could properly refuse this request. See Yarbrough v. State , 779 S.W.2d 844, 845 (Tex. Crim. App. 1989) (per curiam); Croft v. State , 148 S.W.3d 533, 539

- 40 (Tex. App.

— Houston [14th Dist.] 2004, no pet.). Appellant’s fifth issue is overruled.12 M OTION FOR N EW T RIAL

– N EWLY D ISCOVERED E VIDENCE In his first issue, Appellant contends that he is entitled to a new trial because newl y discovered evidence showed that the victim “withheld relevant information prior to trial” that affected the presentation of the case. Standard of Review and Applicable Law Motions for new trial based on grounds of newly discovered evidence are not favore d by courts. Drew v. State , 743 S.W.2d 207, 225

– 26 (Tex. Crim. App. 1987). Texas Code of Criminal Procedure Article 40.001 provides “[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since tria l.” T EX
. C ODE C RIM
. P ROC

. A NN
. art. 40.001 (West 2006). In order for a defendant to be entitled to a new trial on the basis of newly discovered or newly available evidence, the following four

- part test must be met: (1) the new evidence must have been unk nown or unavailable to him at the time of trial; (2) his failure to discover or to obtain the evidence was not due to his lack of diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. Carsner v. State , 444 S.W.3d 1, 2

– 3 (Tex. Crim. App. 2014). The failure of the movant to establish any one of the requirements for a new trial based on newl y discovered evidence supports the trial court’s denial of the motion. See Jones v. State , 234 S.W.3d 151, 157 (Tex. App.

— San Antonio 2007, no pet.) (citing Shafer v. State , 82 S.W.3d 553, 556 (Tex. App.

— San Antonio 2002, pet. ref’d)). Discussion Appella nt argues that after the trial’s conclusion, the victim gave another interview, and claimed that she and Appellant had sexual intercourse a week or two prior to the alleged incident in this case. Appellant asserts that had he known this, his strategy woul d have been different. Namely, he contends he would have used the information to show that the victim lied, that it was possible that the penetration occurred during the earlier event, and that he never penetrated the victim on the night of the offenses f or which he was indicted. Alternatively, Appellant argues that he might have decided to plead guilty had he known of the interview. It appears that the crux of Appellant’s claim is that he would have used the interview to impeach the victim’s credibility at a new trial. This is an improper basis upon which to grant a13

motion for new trial for newly discovered evidence. See Carsner , 444 S.W.3d at 2

– 3 (identifying impeachment as improper basis for new trial due to newly discovered evidence). With regard t o his complaint that the interview would dispel any possibility that he penetrated the victim on the date alleged in the indictment, such a conclusion does not follow, because we have already described ample evidence that he penetrated the victim’s sexual organ on the night alleged in the indictment. Moreover, one of the focuses of Appellant’s defense was that he was a man of good character and that this was an isolated incident that occurred while he was intoxicated. Had the jury known that he committed other sexual offenses against the victim on a prior occasion, it would likely have assessed an even harsher sentence. Consequently, we fail to see how he was harmed by the omission of the evidence. Finally, with regard to Appellant’s argument that he wou ld have pleaded guilty had he known of the interview, he cites no authority to support that a change in trial strategy based on newly discovered evidence is a proper ground for a new trial under these circumstances. Nor have we have found such authority. Appellant’s first issue is overruled.

C RUEL AND U NUSUAL P UNISHMENT In his sixth issue, Appellant argues that his concurrent sentences amount to cruel and unusual punishment in violation of the United States and Texas constitutions. However, Appellant made no timely objection to the trial court raising the issue of cruel and unusual punishment and has, therefore, failed to preserve any such error. See Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (waiver with regard to rights under the T exas Constitution); Curry v. State , 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (waiver with regard to rights under the United States Constitution); see also T EX
. R. A PP
. P. 33.1; Mays v. State , 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). (“Preservation of error is a systemic requirement that a first

- level appellate court should ordinarily review on its own motion[;] . . . it [is] incumbent upon the [c]ourt itself to take up error preservation as a threshold issue.”). But even despite Appellant’s failure t o preserve error, we conclude that the sentences about which Appellant complains do not constitute cruel and unusual punishment. The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State , 905 S.W.2d 655, 664 (Te x. App.

— Texarkana 1995, pet. ref’d); see also Simmons14

v. State , 944 S.W.2d 11, 15 (Tex. App.

— Tyler 1996, pet. ref’d). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel,

or unusu al. See Harris v. State , 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State , 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis , 905 S.W.2d at 664. In the case at hand, Appellant was convicted of two counts of aggravated sexual assault of a child , the punishment range for which is five to ninety

- nine years or life for each offense. See T EX
. P ENAL C ODE A NN
. §§ 12.32, 22.021 (West 2011 & Supp. 2014). He was also convicted for indecency with a child by contact, the punishment range for which as all eged, is two to twenty years of imprisonment. See T EX
. P ENAL C ODE A NN
. §§ 12.33, 21.11 (West 2011). Here, the sentences imposed by the trial court fall within the range set forth by the legislature. Therefore, the punishments are not prohibited as cruel , unusual, or excessive per se. Nonetheless, Appellant urges the court to perform the three part test originally set forth in Solem v. Helm , 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the proportionality of a sentence is evalu ated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem , 463 U .S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in Harmelin v. Michigan , 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 ( 1991) to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder v. Puckett , 954 F.2d 313, 316 (5th Cir. 1992), cert. denied , 506 U.S. 849, 113 S. Ct. 146, 1 21 L. Ed. 2d 98 (1992); see also Jackson v. State , 989 S.W.2d 842, 845

– 46 (Tex. App.

— Texarkana 1999, no pet.). We first must determine whether Appellant’s sentences are grossly disproportionate. In so doing, we are guided by the holding in Rummel v. Estel l , 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). In Rummel , the Supreme Court addressed the proportionality claim of an appellant who had received a mandatory life sentence under a prior version of the Texas habitual offender statute for a convi ction of obtaining $120.75 by false pretenses. See id

. , 445 U.S. at 266, 100 S. Ct. at 1135. A life sentence was imposed because the appellant also had two prior felony convictions

–– one for fraudulent use of a credit card to obtain $80.00 worth of goods or services and the other for passing a forged check in the amount of $28.36. Id

. , 445 U.S. at 266,15

100 S. Ct. at 1134

– 35. After recognizing the legislative prerogative to classify offenses as felonies and, further, considering the purpose of the habitua l offender statute, the court determined that the appellant’s mandatory life sentence did not constitute cruel and unusual punishment. Id. , 445 U.S. at 285, 100 S. Ct. at 1145. In the case at hand, the two counts of aggravated sexual assault of a child, a long with the indecency with a child count, were far more serious than the combination of offenses committed by the appellant in Rummel , while Appellant’s seventy

- five year sentences and twenty year sentence are, in effect, no more severe than the life sen tence upheld by the Supreme Court in Rummel . Thus, it is reasonable to conclude that if the sentence in Rummel was not unconstitutionally disproportionate, then neither are the concurrent sentences assessed against Appellant in the case at hand. Therefor e, since the threshold test has not been satisfied, we need not apply the remaining elements of the Solem test. Appellant’s sixth issue is overruled.

D ISPOSITION Having overruled Appellant’s six issues, we affirm the judgment of the trial court.

J AMES T. W ORTHEN Chief Justice Opinion delivered April 22, 2015

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDG MENT

APRIL 22 , 2015

NO. 12
- 13
- 00241
- CR

JAMES SCOTT FRELS, Appellant V. THE STATE OF TEXAS, Appellee
Appeal from the 258th District Court of Trinity County, Texas (Tr.Ct.No. 9953) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed , and that this decision be certifie d to the court below for observance.

James T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.