## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 14

- 00450

- CR

ERIC BLEDSOE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRI CT COURT NO. 2 OF TA RRANT COUNTY

TRIAL COURT NO. 1325 173D

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### OPINION

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Appellant Eric Bledsoe appeals from his convictions for aggravated sexual

assault of a child under six and in decency with a child. W e conclude that the

judgment for aggravated sexual assault should be modified to cle arly reflect that

it involved a c hild younger than six. But because we find no other error in the

trial court’s judgment, we affi rm it as modified. We also affirm the trial court’s

judgment for indecency with a child.2 I. BACKGROUND

Approximately four weeks after S.L.’s fourth birthday on February 21,

2013

, S.L. told her mother

, A.L., that Bledsoe, who was S.L’s step

- grandfather,

had earlier told S.L. that she could use his p enis as a pacifier and asked her to

“ squish ” his penis. S.L. denied using his penis as a pacifier but did admit t hat

she had “squeeze[ed]” Bledsoe’s penis with her hands

. A.L. called her mother,

who was married to Bledsoe, to report the child’s allegations. A.L.’s mother

confronted Bledsoe. Bledsoe asserted that he had accidentally exposed himself

to S.L. and that S.L. then had “kissed” his penis. A few day s after S.L.’s outcry to

A.L.

, S.L. told Joy Hallum, a forensic interviewer

, that Bledsoe had “ poke [ d ]”

inside her vagina with his finger. S.L. also reported to a sexual

- assault nurse

examiner, Rebecca Sullivan

, that Bledsoe had put his finger inside her sexual

organ

.

A grand jury indicted Bledsoe with aggravated sexual assault of a child

under the age of six

— “int entionally or knowingly cause the penetration of the

sexual organ of [S.L.], a child younger than 6 years of age, by inserting his finger

into her sexual organ ” (count one)

. See Tex. Penal Code Ann. § 22.021 (West

Supp. 2014 ). In the same indictment, the grand jury also indicted Bledsoe with

indecency with a child

— “intentionally, with the intent to arouse or gratify [his]

sexual desire

. . . , engage in sexual contact with [S.L.], a child younger than 17

years, by causing [S.L.] to touc h the sexual organ of [Bledsoe] ” (count two).

See id. § 21.11 (a)(1) (West 2011 ).3 Before tri al, the State notified Bledsoe of its intent to offer A.L.’s and

Hallum ’s testimony regarding S.L.’s outcry statements to them

. See Tex. Code

Crim. Proc. Ann. art. 38.072, § 2 (West Supp. 2014 ). Both testified at trial.

Sullivan also testified for the State about her medical examination of S.L

. During

Sullivan ’ s testimony

, Bledsoe lodged a hearsay objecti o n to the State’s question

regarding what S.L. told her about the offense during the exam. The trial court

overruled Bledsoe’s hearsay objection, and Sullivan testified tha t S.L. had stated

that Bledsoe had put his finger inside her female sexual organ and that she had

squeezed his penis with her hands. At trial, S.L. denied that Bledsoe had

penetrated her sexual organ and testified that he had touched “on the skin of” but

“outside” her sexual organ

. S.L. stated that it hurt when Bledsoe touched her

sexual organ.

A jury found Bledsoe guilt y of count one and count two

. The jury assessed

his punishment at 60 years’ confinement for count one and at 20 years’

confin ement fo r count two

. The trial court entered judgment s accordingly.

Bledsoe now appeals and argues that his trial counsel was constitutionally

ineffective, the jury charge s at guilt

- innocence and at punishment contained

error, the trial court erred by overruling Bledsoe’s hearsay objection to Sullivan’s

testimony, and the evidence of penetration was insufficient. The State asserts in

a cross

- issue that the trial court’s judgment in count one should be modified to

clearly show that Bledsoe was convicted of aggrav ated sexual assault of a child

under six years old.4 II. BLEDSOE’S ISSUES

A. S UFFICIENCY OF THE E VIDENCE

In his fifth issue, Bledsoe argues that the ev idence was insufficient to prov e

he penetrated S.L.’s sexual organ

. In our due

- process review of the sufficiency of

the evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jac kson v.

Virginia

, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State

,

434 S.W.3d 166, 170 (Tex. Crim. App. 2014). W hen performing an evidentiary

sufficiency review, we may not re

- evaluate the weight and credibility of the evidence

or substitut e our judgment for that of the fact

- finder. Isassi v. State , 330 S.W.3d

633, 638 (Tex. Crim. App. 2010).

Hallum and Sullivan testified that S.L. stated shortly after the offense that

Bledsoe had poked her sexual organ with his finger and put his finger i nside. At

trial

, S.L. denied Bledsoe penetrated her sexual organ

. Any conflict b etween S.L.’s

prior statements to Hallum and Sullivan and her trial testimony create d a credibility

issue for the jury to resolve. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789;

Dobbs , 434 S.W.3d at 170. The jury was fr ee to disbelieve S.L. ’ s trial testimony

.

S.L.’s statements to Hallum and Sullivan alone were sufficie nt to prove penetration

.

See Chambers v. State

, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding

reca ntation does not destroy probative value of outcry statement and fact

- finder

is free to disbelieve recantation). We overrule Bledsoe ’ s fifth issue.5 B. A DMISSION OF S ULLIVAN ’ S T ESTIMONY

Bledsoe argues in his fourth issue that the trial court abused its d iscretion by

admitti ng Sullivan ’s testimony regarding S.L.’ s outcry statements to her

. At trial,

Bledsoe objected that Sullivan’s testimony was inadmissible hearsay, and the State

asserted that her testimony fell under an exception to the hearsay rule as a

statement made for medical diagnosis or treatment. See Tex. R. Evid. 803(4).

Bledsoe raised no further objection to Sullivan’s testimony.

Although Bledsoe’s general hearsay objection would preserve his complaint

for appellate review in most cases, t he State identified the hearsay exception on

which it relied in response to Bledsoe’s objection ; therefore, Bledsoe was required

to further object that the invoked exception did not apply

. See Tex. R. Evid.

103(a)(1); Long v. State

, 800 S.W.2d 545, 548 (T ex. Crim. App. 1990) ; Meyers v.

State

, 865 S.W.2d 523, 524

– 25 (Tex. App.

— Houston [14th Dist.] 1993, pet.

ref’d); cf. Lankston v. State

, 827 S.W.2d 907, 910 (Tex. Crim. App. 1992)

(“[B]ecause all of the testimony sought to be elicited from the witness

. . . was

necessarily hearsay, and because its admissibility under article 38.072 had

already been established, Appe llant was obliged at least to cl aim that a specific

part of it was objectionable in spite of the exception.”). Even if Bledsoe had not

procedura lly defaulted this complaint, the trial court did not abuse its discretion

by admitting Sullivan’s testimony. See Franklin v. State

, 459 S.W.3d 670, 675

–

78 (Tex. App.

— Texarkana 2015, pet. filed) (holding sexual

- assault nurse’s6 testimony was properly admit ted as statements made for the purpose of medical

diagnosis)

. We overrule Bledsoe ’ s fourth issue.

C. J URY C HARGE

1. Guilt

- Innocence

In his third issue, Bledsoe argues that the trial court’s jury charge given

during the guilt

- innocence portion of the tr ial was erroneous because it omitted a

comma from the statutory definition of sexual contact, causing confusion.

Bledsoe did not object to the definition at trial ; thus, we may reverse only if the

unpreserved error caused egregious harm. See Tex. Code Cri m. Proc. Ann. art.

36.19 (West 2006); Nava v. State , 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).

The appropriate inquiry for egregious harm is a fact specific one that must be

performed on a case

- by

- case basis. See Gelinas v. State

, 398 S.W.3d 703, 710

(T ex. Crim. App. 2013); Taylor v. State

, 332 S.W.3d 483, 489 (Tex. Crim. App.

2011). We are to analyze any harm in light of the entire jury charge, the state of the

evidence, the argument of counsel, and any other relevant information in the record.

See Al manza v. State

, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

Here, the trial court defined sexual contact both in the context of (1) the actor

touching protected parts of the child’ s body and (2) prohibited parts of the actor’s

body touching the child. See Tex. Penal Code Ann. § 21.11(c). The definition of

the second context of sexual contact omitted a comma:

“ Sexual contact ” means the following acts, if committed with the

intent to arouse or gratify the sexual desire of any person: any

t ouching by a person, including touching through clothing, of the anus,7 breast, or any part of the genitals of a child; or any touching of any part

of the body of a child, including touching through clothing [sic] of the

anus, breast, or any part of the gen itals of a person.

The later application portion of the jury charge correctly instructed the jury regarding

the charge of indecency with a child. The jury heard evidence that Bledso e

admitted to his wife that he accidentally exposed himself to S.L. and t hat there was

contact between his penis and S.L.’s mouth. The State’s and Bledsoe’s closing jury

arguments clearly informed the jury what type of touching was alleged. Even if the

omission of a comma in the abstract portion of the charge were errone ous, it did not

cause egregious harm entitling Bledsoe to appellate relief. See Medina v. State

,

7 S.W.3d 633, 640 (Tex. Crim. App. 1999)

, cert. denied

, 529 U.S. 1102 (2000)

. We

overrule issue three.

2. Punishment

Bledsoe argues in his second issue that th e trial court erred by instructing the

jury in the punishment charge that Bledsoe would not be “eligible for release or

parole” if sentenced to a term of imprisonment for his conviction for count one

.

Bledsoe asserts that because the operative wording was “release or parole” instead

of “release on parole,” the jury was thereby erroneously informed that any sentence

would be a life sentence “no matter what the jury did.” The jury charge further

instructed the jury that although it could consider the existe nce of parole law and

good

- conduct time, it could not consider “the extent to which good conduct time may

be awarded

. . . or forfeited” or “the manner in which the parole law may be applied8 to this particular Defendant.” As with his challenge to the guil t

- innocence charge,

Bledsoe did not object to the parole instruction he attacks on appeal.

The instruction was not erroneous. See Tex. Gov’t Code Ann. § 508.145(a)

(West Supp. 2014 ). Even if erroneous, it was not egregious ly harmful

. See Igo v.

State

, 210 S.W.3d 645, 647

– 48 (Tex. Crim. App. 2006); Hubert v. State

, No. 05

- 12

-

01084

- CR

, 2014 WL 1022324, at *13 (Tex. App.

— Dallas Mar. 4, 2014, pet. ref’d)

(not designated for publication). Bledsoe wa s not eligible for parole based on his

conviction for aggra vated sexual assault of a child under six. See Tex. Gov’t Code

Ann. § 508.145(a)

. Indeed, Bledsoe argued to the jury that its sentence would not

be reduced by parole and because the minimum term was twenty

- five years, any

term of confinement practically would be a life sentence : “ [H]e is not eve n eligible

for parole. If he gets 25, he’ ll do 25. If he gets 30, he will do the full 30,

. . . up to

life.

. . . [H]e’s going down basically to a life sentence. He’s 57 years old. You can

do the math.” Ther e was no egregious harm to Bledsoe arising from the parole

instruction, and we overrule issue two.

D. I NEFFECTIVE A SSISTANCE OF C OUNSEL

Bledsoe asserts that trial counsel was ineffective at trial for failing to

(1) request a reliability he aring before H allum and A.L. testified, (2) object to

Hallum’s testimony as hearsay, (3) “explore” the validity of the State’s medical

diagnosis hearsay exception, and (4) object to the omitted comma in the definition of

sexual conduct in the jury charge. He also argue s counsel was constitutionally9 ineffective at punishment for failing to object to the parole instruction regarding his

conviction for count one

.

To establish ineffective assistance of counsel, Bledsoe must show by a

preponderance of the evidence that hi s counsel ’ s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel ’ s deficiency, the result of the trial would have

been different

— deficient performance resulting in prejudic e

. See Strickland v.

Wash ington , 466 U.S. 66 8, 687, 104 S. Ct. 2052, 2064 (1 984); Menefield v.

State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective

- assistance

claim must be “ firmly founded in the record ,” and “ the record must affirmatively

d emonstrate ” the meritorious nature of the claim. Thompson v. State , 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). Trial counsel “ should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective. ”

Men efield , 363 S.W.3 d at 593.

Bledsoe did not file a motion for new trial raising ineffective assis tance of

counsel; t herefore, we have no record evidence of counsel ’ s reasoning behind

his actions or inactions

. Because counsel ’ s reasons for his conduct do not

appear in the record and there is at least the possibility that the conduct could

have been grounded in le gitimate trial strategy, we defer to counsel ’ s decisio ns

and overrule Bledsoe’s first issue

. See Garza v. State , 213 S.W.3d 338, 348

(Tex. Crim. App. 2007).10 III. THE STATE’S CROSS

- ISSUE

In its cross

- issue

, the State argues that the judgment for count one should

be modified to clearly show that the offense of which Bledsoe was convicted was

aggravated sexual assault of a child under six years of age. The State su ggests

that section 22.021(f) should be included along with section 22.021(a)(2)(B) in

the judgment and that the statement of the offense should be expanded to state

that S.L. was under six at the time of the offense. Bledsoe has n ot responded to

this cro ss

- issue

.

The grand jury indicted Bledsoe with “intentionally or knowingly caus[ing]

the penetrat i on of the sexual organ of [S.L. ], a child younger than 6 years of age,

by inserting his finger into her sexual organ. ” The State introduc ed evidence that

the victim was “four or three” when the offense occurred on March 20, 2013, and

that she was five at the October 21, 2014 trial

. The jury charge explained that

“[t]he offense is Aggravated Sexual Assault of a Child if the victim is younger

than 6 years of age.” Similarly, in a later application paragraph, the trial court

instructed the jury that it should find Bledsoe guilty of a ggravated s exual a ssault

of a c hild if it found beyond a reasonable doubt that Bledsoe “intentionally and

knowingly cause[d] the penetration of the sexual organ of [S.L. ], a child younger

than 6 years of age, by inserting his finger into her sexual organ.” The jury found

Bledsoe guilty of “the offense of Aggravated Sexual Assault of a Child as

charged in Count One of the Indictmen t.”11 As charged, S.L. ’s age was an aggravating , yet essential, element of the

offense that the State was required to prove beyond a reasonable doubt;

th erefore, it would be appropriately reflected in the trial court’s judgment for count

one as part of th e portions of the judgment entitled “O ffense for whi ch Defendant

Convicted” and “Statute for O ffense.” See Reed v. State , 991 S.W.2d 354, 358

(Tex. App.

— Corpus Christi 1999, pet

. ref’d) (holding when only aggravating

element in sexual

- assault offense is a ge of victim, victim’s age is essential

element of the offense). See generally Tex. Code Crim. Proc. An n. art. 42.01,

§ 1 (West Supp. 2014 ) (providing judgment must reflect the offense for which

defendant was convicted). The indictment charged Bledsoe wi th aggravated

sexual assault of a child under six in count one and that is what the jury found

Bledsoe guilty of

.

The judgment does reflect that the victim was younger than six at the time

of the offense; however, this notation is at the bottom of the ju dgment in the

portion entitled “Sex Offender Registration Requirements apply to the

D efendant.” In order to ensure that Bledsoe’s sentence is correctly computed by

the Texas Department of Criminal Justice, the judgment should be modified to

show clearly t hat Bledsoe was convicted of aggravated sexual assault of a child

under the age of six, which bars his eligibility for early release on parole.

See Tex. Gov’t Co de Ann. § 508.145(a) ; cf. Leija

- Balderas v. State , No. 05

- 14

-

00648

- CR, 2015 WL 1454948, at *1 (Tex. App.

— Dallas Mar. 27, 2015, pet. ref’d)

(mem. op., not designated for publication) (modifying judgment to reflect12 defendant pleaded guilty to and was convicted of aggravated sexual assault of a

child younger than fourteen under section 22.021(a)(1)(B) and to delete notation

that victim was five at the time of the offense). Without this modification, the

Texas Department of Criminal Justice could erroneously, yet understandably,

conclude that Bledsoe is eligible for release on parole. See Tex. Gov’t C ode

Ann. § 508.145(d)(1) (providing parole eligibility for inmates convicted of

aggravated sexual assault under penal code section 22.021) ; cf. Aldana v. State

,

No. 08

- 13

- 00243

- CR, 2015 WL 2344023, at *2 (Tex. App.

— El Paso May 14,

2015, pet. filed) (not d esignated for publication) (modifying judgment to delete

fines in two of three convictions to ensure prison officials understood fines were

not concurrent).

The State’s requested modification is warranted because it was an

element of the offense that the State was required to prove, because it ensures

proper calculation of Bledsoe’s sentence for aggravated sexual assault of a child

under six, and because Bledsoe does not argue it would be improper.

Accordingly, we modify t he portion of the judgment for co unt one entitled

“Offense for which Defendant Convicted” to reflect that Bledsoe was convicted of

aggravated sexual assault of a child younger than si x years of age. Further , t he

portion of the judgment for count one entitled “Statute for Offense” is modi fied to

state not only penal code section 22.021(a)(2)(B) but also section 22.021(f)(1).

See Tex. Penal Code Ann. § 22.021

. We sustain the State’s cross

- issue

.13 IV. CONCLUSION

We modify the trial court’s judgment for count one to state that the “Statut e

for Offense” is “22.021(a)(2)(B), (f)(1) PC” and to state that the “Offense for which

Defendant Convicted” is “aggravated sexual assault of a child younger than six

years of age.” As modified, we affirm the trial court’s judgment for count one

.

See Tex . R. App. P. 43.2(b). We affirm the trial court’s judgment for count two.

See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J.

, filed a dissenting opinion

.

PUBLISH

DELIVERED: October 29, 201 5