COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CRAIG LEE SMITH,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-13-00044-CR

Appeal from the

97th District Court

of Montague County, Texas1

(TC# 2012-0119M-CR)

O P I N I O N

In two issues, Appellant Craig Lee Smith seeks reversal of his conviction on one count of 

indecency with a child by contact, arguing that the evidence underpinning the conviction was 

legally insufficient and that trial counsel rendered ineffective assistance by failing to secure a 

psychiatric evaluation. We affirm.

BACKGROUND

On May 11, 2011, Appellant and his friend Damien Frettoloso came across K.S., who 

was fifteen years’ old at the time, on their way to a liquor store in Nocona, Texas. K.S. offered 

to give Appellant money to buy her beer. Appellant agreed. After purchasing alcohol at the 

liquor store, the three returned to Appellant’s house and continued drinking. Frettoloso testified 

 

1 This case is on transfer from the Second Court of Appeals in Fort Worth.
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that Appellant then began making sexual advances toward K.S., which she rebuffed. K.S. 

testified that Appellant ultimately ended up grabbing her by the throat and slamming her against 

the truck after she refused to have sex with him. Montague County Sherriff’s Department 

Investigator Mark Blankenship verified that when he interviewed K.S. after the fact, he saw 

bruising on her neck.

K.S. and Frettoloso both testified that at some point, he and Appellant carried her into 

Appellant’s pick-up truck. Both also testified that Appellant then had sexual intercourse with 

K.S. Once Appellant finished, Frettoloso performed oral sex on K.S.2 According to K.S. and 

Frettoloso, Appellant then had sexual intercourse with K.S. a second time.

Testifying in his own defense, Appellant denied having any sexual contact with K.S. He 

admitted that he had told investigators that he performed oral sex on K.S., but he testified that the 

confession was false. His mother was in the hospital that day, and Appellant said that Nocona 

Police Department Sgt. Matt Poole told him if he confessed to having oral sex with K.S., he 

would be set free to go visit his mother and not be in any trouble. Frettoloso testified in the 

State’s case in chief that Appellant did not perform oral sex on K.S. However, on recall by the 

defense, Frettoloso testified that Appellant did force K.S. to put his penis in her mouth. 

Appellant also testified that prior to the alleged sexual activity, he sustained a head injury which 

required surgery. He further testified that after the injury, he has some communication and 

memory problems.

The State indicted Appellant on one count of sexual assault of a child, TEX.PENAL CODE 

ANN. § 22.011(a)(2)(West 2011), and one count of indecency with a child by contact, TEX.PENAL 

CODE ANN. § 21.11(a)(1)(West 2011). Following trial, the jury acquitted Appellant of sexual 

assault, but convicted him on the separate charge of indecency with a child by contact. This 

 

2

Frettoloso was separately convicted for indecency with a child arising out of this same incident.
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appeal followed.

DISCUSSION

Legal Sufficiency

In Issue One, Appellant contends that the evidence is legally insufficient to support his 

conviction for indecency with a child by contact, given that he recanted his police confession, 

K.S. never specifically mentioned oral sex involving Appellant in her testimony, and Frettoloso 

specifically denied seeing Appellant perform oral sex on K.S. and admitted he was the only one 

who performed it.3 In essence, Appellant raises a corpus delicti argument that his extrajudicial 

confession to oral sex cannot be independently corroborated. See Smith v. State, No. 03-98-

00666-CR, 1999 WL 975872, at *2 (Tex.App.--Austin Oct. 28, 1999, pet. ref’d)(not designated 

for publication).

Appellant incorrectly frames the legal sufficiency inquiry in terms of whether Appellant 

had oral sex with K.S. In reviewing the legal sufficiency of a criminal verdict, “we view the 

evidence in the light most favorable to the verdict and determine whether any rational trier of 

fact could have found the essential elements of the offense beyond a reasonable doubt.” Matlock 

v. State, 392 S.W.3d 662, 667 (Tex.Crim.App. 2013). “When there is conflicting evidence, we 

must presume the factfinder resolved the conflict in favor of the verdict, and defer to that 

resolution.” Menyweather v. State, No. 05-13-01108-CR, 2014 WL 6450826, at *3 (Tex.App.--

 

3 As we previously noted, Frettoloso did testify that Appellant forced his penis into K.S.’s mouth. Although this 

would likely be sufficient to uphold Appellant’s indecency conviction had that conduct been charged, see

TEX.PENAL CODE ANN. § 21.11(c)(2)(defining sexual contact as “any touching of any part of the body of a child . . . 

with . . . any part of the genitals of a person”), the State did not elect to allege this alternative in the indictment. 

Instead, in Count Two, the State only alleged that Appellant touched K.S.’s genitals. See id. at § 21.11(c)(1).

“When a statute lays out alternative manner and means of committing an offense, the manner and means 

included in the charging instrument becomes an essential element that the State must prove beyond a reasonable 

doubt.” Avery v. State, 359 S.W.3d 230, 237 (Tex.Crim.App. 2012). “Proof of a different, uncharged, manner and 

means will not support a conviction for the offense that was charged.” Id. We do not reach the question of whether 

proof that Appellant forced K.S. to contact his genitals constituted a fatal variance from the allegations in the 

indictment because we find sufficient evidence to establish the genital contact as alleged.
4

Dallas Nov. 18, 2014, no pet.h.)(not designated for publication). “Evidence is sufficient if the 

inferences necessary to establish guilt are reasonable based upon the cumulative force of all the 

evidence when considered in the light most favorable to the verdict.” Menyweather, 2014 WL 

6450826, at *3 [Internal quotation marks omitted].

A person commits indecency with a child by contact where he or she engages in sexual 

contact with a child under the age of seventeen. TEX.PENAL CODE ANN. § 21.11(a)(1). Sexual 

contact is defined by statute as, inter alia, any touching by a person, including touching through 

clothing, of the anus, breast, or any part of the genitals of a child, with the intent to arouse or 

gratify the sexual desire of any person. TEX.PENAL CODE ANN. § 21.11(c)(1).

The State alleged in the indictment that Appellant committed indecency by touching 

K.S.’s genitals. The indictment does not use specific language in describing the method by 

which Appellant “touched” K.S.’s genitals, nor does it need to. See State v. Shuck, 222 S.W.3d 

113, 116 (Tex.App.--Houston [14th Dist.] 2006, no pet.). So long as the jury found sufficient 

proof that Appellant touched K.S.’s genitals with any part of his body, see id. (sexual contact can 

occur with any part of defendant’s body), and believed that while doing so Appellant possessed 

the requisite mens rea beyond a reasonable doubt, his conviction stands.

Here, although the jury apparently failed to find proof of penetration beyond a reasonable 

doubt based on the Count One acquittal, there is legally sufficient evidence in the record to 

establish sexual contact beyond a reasonable doubt for two reasons. First, the jury could 

reasonably infer genital contact from K.S.’s testimony that Appellant had sexual intercourse with 

her. Second, the jury could also draw the same inference from Frettoloso’s testimony that he 

witnessed K.S. with her pants down and Appellant having sexual intercourse with K.S.4 Viewed 

 

4 Appellant appears to argue that the State must definitively prove oral contact as an alternate method of indecency 

in order to uphold his conviction, since his acquittal on the sexual assault charge alleging genital-to-genital contact
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in light of this testimony, Appellant’s apparently uncorroborated confession to performing oral 

sex on K.S. is not strictly relevant. The State needed to only prove sexual contact and it did so 

through victim and eyewitness testimony. The evidence was legally sufficient on this count. 

Issue One is overruled.

Ineffective Assistance of Counsel

In Issue Two, Appellant maintains that trial counsel rendered constitutionally ineffective 

assistance by failing to offer testimony from a psychiatric or “false confessions” expert on the 

effects of Appellant’s brain injury. We disagree. 

Applicable Law

Both the federal and state constitutions guarantee a criminal defendant the right to 

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 

2063, 80 L.Ed.2d 674 (1984)(interpreting Sixth and Fourteenth Amendments to U.S.

Constitution); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986)(adopting Strickland

analysis for state constitutional claims). We review ineffective assistance of counsel claims 

under a two-step analysis. First, we must determine whether counsel’s performance was 

deficient, i.e., if his performance fell below the standard of prevailing professional norms. Id. at 

55. Second, we determine whether counsel’s error prejudiced the defendant—in other words, 

whether there is a reasonable probability that, but for counsel’s error, the outcome of the 

 

and penetration resulted in an automatic acquittal on the “lesser included” indecency charge from the same alleged 

sexual act. This is a misapprehension of law. While acquittal on a lesser-included offense would necessarily 

preclude conviction of a greater offense predicated on the same elements, a jury is free to acquit a defendant of a 

greater offense while still finding him guilty of a lesser-included offense. See Prince v. State, No. 08-12-00290-CR, 

2014 WL 5317143, at *3 (Tex.App.--El Paso Oct. 17, 2014, no pet.)(not designated for publication)(discussing 

greater v. lesser-included offenses in jury charge context).

Here, even assuming for the sake of argument that Count II functioned as a lesser-included offense of 

Count I and not as a distinct act separate from alleged genital-to-genital contact, the jury was not precluded as a 

matter of law from finding that Appellant touched K.S.’s genitals with his own genitals or any other part of his body 

(sufficient to uphold Count II) while still finding there was no penetration involved from that act (explaining the 

acquittal on Count I).
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proceeding would have been different. Hernandez, 726 S.W.2d at 55. “The two prongs of 

Strickland need not be analyzed in a particular order - the prejudice prong may be analyzed first 

and the performance prong second.” Ex parte Martinez, 330 S.W.3d 891, 900 n.19 

(Tex.Crim.App. 2011). “Counsel is strongly presumed to have rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional judgment.” Mallet v. 

State, 9 S.W.3d 856, 866 (Tex.App.--Fort Worth 2000, no pet.)[Internal quotations marks 

omitted].

Analysis

Appellant asserts that under Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1091-92, 

84 L.Ed.2d 53 (1985), he was entitled to a court-appointed psychiatrist upon request as an 

indigent defendant. Appellant does not argue that, as in Ake, appointment of a psychiatric expert

would have allowed him to possibly present an insanity defense. Instead, Appellant insists that 

the psychiatric expert could have contextualized and discredited his confession in the eyes of the 

jury by describing the nature of his head injury. Thus, by not securing a court-appointed 

psychiatrist, Appellant argues trial counsel failed to call a material witness. See Mallet, 9 

S.W.3d at 866.

Appellant cites Woods v. State, 59 S.W.3d 833, 837-38 (Tex.App.--Texarkana 2001, pet. 

granted), rev’d on other grounds, 108 S.W.3d 314 (Tex.Crim.App. 2003), in support of his 

argument. In Woods, the Texarkana Court of Appeals recognized the importance of mental 

health expert witnesses to the defense and reversed a defendant’s conviction where his attorney 

failed to obtain a court-appointed psychiatrist who could evaluate an adverse psychiatric report 

produced by the State. 59 S.W.3d at 837-38. This case is distinguishable. In Woods, the 

defendant was able to overcome the presumption of competence because the direct appeal record 
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showed that the defendant had a history of childhood abuse, a head injury, multiple commitments 

to state mental hospitals beginning at age thirteen, and “evidence that he heard voices telling him 

to do bad things and that he suffered hallucinations.” Woods, 59 S.W.3d at 838. As such, trial 

counsel’s failure to obtain a free, court-appointed defense psychiatrist to investigate a possible 

insanity defense constituted obvious prejudicial error. Id. at 837-38.

Here, because there is no record evidence showing that counsel completely failed to 

investigate Appellant’s mental health condition, the presumption of competence applies. 

Compare Conrad v. State, 77 S.W.3d 424, 426 (Tex.App.--Fort Worth 2002, pet. 

ref’d)(attorney’s admitted failure to investigate client’s mental condition at all constituted 

deficient performance per se under Strickland prong one). The record on direct appeal in this 

case shows Appellant sustained a head injury in a car accident, and that as a result of the injury, 

he suffers from occasional memory loss and some difficulty in speaking. Unlike Woods, in 

which the limited direct appeal record showed that the defendant suffered from severe mental 

health issues warranting further investigation, the record before us is too underdeveloped to 

overcome the presumption that counsel’s failure to obtain and call a psychiatric witness, even in 

light of Appellant’s brain injury, was strategic.

Even if on this record we believed counsel’s performance fell below an objective 

standard of reasonableness, we do not believe Appellant can show there was a reasonable 

probability that the outcome of this case would be different had psychiatric testimony been 

introduced. Appellant correctly points out that the State relied on his confession to performing 

oral sex on K.S. in its closing arguments. However, the victim K.S. and Frettolso, a 

corroborating witness, both testified that Appellant engaged in sexual conduct with K.S. The 

independent evidence of Appellant’s guilt from the victim and an eyewitness mitigates the 
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prejudicial effect of any error committed by trial counsel.

In sum, the record presented is insufficient to establish either deficient performance or 

prejudice. This point is without merit.

Issue Two is overruled. The judgment of the trial court is affirmed.

January 9, 2015

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, J., and Larsen, Senior Judge

Larsen, Senior Judge Sitting by Assignment

(Do Not Publish)