O'Hara v. State

• Decision Date: 29 January 1992
• Docket Number: No. 3-91-029-CR,3-91-029-CR
• Citation: 837 S.W.2d 139
• Parties: Patrick S. O'HARA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 139

837 S.W.2d 139

Patrick S. O'HARA, Appellant, v. The STATE of Texas, Appellee.

No. 3-91-029-CR.

Court of Appeals of Texas Austin.

Jan. 29, 1992.

Rehearing Overruled March 25, 1992.

Paul A. Finley, Reagan, Burrus, Dierksen, Lamon & Bluntzer, P.C., New Braunfels, for appellant.

Bill M. Reimer, Dist. Atty., Robert H. Fisher, Asst. Dist. Atty., New Braunfels, for appellee.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

CARROLL, Chief Justice.

Patrick O'Hara was convicted in district court of three counts of aggravated sexual assault of a child. Tex.Penal Code Ann. § 22.021 (1989). The jury assessed punishment

and the trial court sentenced O'Hara to fifty years, fifty years, and seventy-five years imprisonment on the three respective counts. We affirm the trial court judgment as to counts one and three of the indictment, and reverse the trial-court judgment as to count two.

BACKGROUND

In July 1988, Henry M., an eleven-year-old boy whose parents are divorced, went to live with his father in Garden Ridge, Texas. There Henry met Patrick O'Hara, the appellant and a friend of Harold M., Henry's father. Through O'Hara's friendship with Harold, O'Hara had frequent contact with Henry, and the record reflects that O'Hara first attempted to sexually assault Henry during the 1988 Labor Day weekend. From that point, O'Hara began a pattern of sexual advances toward Henry that lasted until Henry was hospitalized for emotional problems in early September 1989.

Henry returned to live with his mother after a month-long stay in the hospital. At that time he confided to his mother that O'Hara had sexually assaulted him a number of times between July 1988 and August 1989. This led to a police investigation, and O'Hara's eventual arrest and conviction.

DISCUSSION

A. Insufficient Evidence.

In his first, second, and third points of error, O'Hara contends that there was legally-insufficient evidence to show he committed the sexual acts alleged in the three counts of the indictment. The first and second counts of the indictment alleged that on or about December 23, 1988 and June 5, 1989, O'Hara caused Henry's sexual organ to penetrate O'Hara's mouth. The third count of the indictment alleged that on or about August 31, 1989, O'Hara penetrated Henry's anus with O'Hara's sexual organ.

The elements of aggravated sexual assault relevant to this cause are: a person; intentionally or knowingly; causes the sexual organ of a child to contact or penetrate the mouth, anus or sexual organ of another person, including the actor; or causes the anus of a child to contact the mouth, anus or sexual organ of another person, including the actor; and the victim is younger than fourteen years of age. Tex.Penal Code Ann. § 22.021 (1989). For the State to obtain a conviction on each count, the State must prove every necessary element of the alleged offenses. In this case, O'Hara contends there is no evidence of sexual contact or penetration.

Henry testified at trial regarding all three instances of sexual assault. He stated that on December 23, 1988, O'Hara told him to take off his clothes and that O'Hara "started playing with my privates" and "put his mouth on my privates." Henry also testified that on June 5, 1989, he spent the night at O'Hara's trailer and that O'Hara "pulled down my underwear and put his mouth on my privates." Finally, Henry testified that on August 31, 1989, O'Hara "pulled down my underwear and stuck himself into my rear end" and that O'Hara then "pulled his privates out of me."

O'Hara asserts that there is no showing that O'Hara placed his mouth on Henry's sexual organ on either December 23, 1988, or June 5, 1989. O'Hara also argues that the evidence does not support the allegation that he penetrated Henry's anus on August 31, 1989. He argues that because Henry did not define or describe the word "privates," one must speculate about the meaning of Henry's testimony. O'Hara further contends that Henry's testimony does not show that O'Hara actually penetrated Henry's mouth or anus with his sexual organ. Finally, he argues that medical evidence should have been introduced at trial that would have supported Henry's testimony regarding anal penetration. O'Hara thus concludes that Henry's testimony does not provide sufficient evidence from which a rational trier of fact could have found the elements of these three alleged crimes beyond a reasonable doubt.

In a sexual assault case, even if the victim is a child, the victim's testimony When reviewing a challenge to the legal sufficiency of the evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). We believe Henry's testimony sufficiently described sexual contact and penetration. Thus, in viewing Henry's testimony in the light most favorable to the verdict, we hold that there is sufficient evidence of the sexual acts alleged in the indictment to sustain O'Hara's convictions. Accordingly, we overrule O'Hara's first three points of error.

alone is sufficient evidence of penetration to support a conviction. Villanueva v. State, 703 S.W.2d 244, 245 (Tex.App.1985, no pet.). Moreover, in examining the testimony of a child, the courts have kept in mind the child's lack of technical knowledge in accurately describing the parts of the body. See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977); Chase v. State, 750 S.W.2d 41, 44 (Tex.App.1988, pet. ref'd); Bryant v. State, 685 S.W.2d 472, 474 (Tex.App.1985, pet. ref'd). In the instant case, although Henry used unsophisticated language, he testified unequivocally that O'Hara committed the offenses charged in the indictment. In addition to Henry's testimony, Graciela Clarke, a New Braunfels counselor, recounted her interview with Henry from which she concluded that he had been sexually abused.

B. Joinder of Offenses.

In his fourth point of error, O'Hara asserts that the State violated the joinder rule by putting three separate offenses of sexual assault within one indictment. Thus, O'Hara contends that this court can only uphold one of his three convictions.

The Code of Criminal Procedure provides that "two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code." Tex.Code Crim.Proc.Ann. art. 21.24 (1989). That chapter defines "criminal episode" as:

The commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are repeated commission of the same or similar offenses.

Tex.Penal Code Ann. § 3.01 (Supp.1992).

The indictment in this cause charges O'Hara with three separate counts of sexual assault upon Henry. The record reflects that O'Hara made a series of sexual advances toward Henry over a period of a year and succeeded in sexually assaulting him on three occasions. We believe these three instances constitute a "repeated commission of the same or similar offenses" and therefore conclude that the State properly joined the three offenses in the same indictment. We overrule this point of error.

C. Venue.

In his fifth point of error, O'Hara seeks to reverse the second count of his conviction on the ground that the record affirmatively disproves the State's allegation of venue. The second count of the indictment charged O'Hara with committing aggravated sexual assault in Comal County on June 5, 1989.

Henry testified at trial that the sexual assault of June 5, 1989, occurred when Henry and his father spent the night at O'Hara's home. O'Hara's sister, Charlyn Finger, testified at trial that she resides with O'Hara at 16720 IH 35 North, Lot #29 in Schertz, Texas, which is located in Guadalupe County. Harold Miller likewise testified that O'Hara's home is located in Guadalupe County. Finally, the manager of the trailer park where O'Hara resides testified Rule 80 of the Rules of Appellate Procedure provides that the court of appeals "shall presume that venue was proved in the court below ... unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record." Tex.R.App.P.Ann. 80(d) (Pamph.1991) (emphasis added). The phrase "or it otherwise affirmatively appears to the contrary from the record" means "affirmative and conclusive proof in the record that the venue of prosecution was improperly laid." Holdridge v. State, 684 S.W.2d 766, 767 (Tex.App.1984), aff'd, 707 S.W.2d 18 (Tex.Crim.App.1986).

that O'Hara had been a tenant at the trailer park for approximately four years.

Venue must be proved as alleged. Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App.1983). The evidence in this case established that O'Hara's home, the situs of the second offense, is located in Guadalupe County, whereas the indictment alleged that the second offense occurred in Comal County. Failure to prove venue in the county of prosecution constitutes reversible error. See id. at 791; Romay v. State, 442 S.W.2d 399, 400 (Tex.Crim.App.1969). See also Tex.R.App.P.Ann. 81(b)(2) (Pamph.1991). Accordingly, we must reverse and dismiss O'Hara's conviction on the second count of the indictment. Following this dismissal, the State is of course free to seek an indictment against O'Hara in the proper county.

D. Ineffective Assistance of Counsel.

In his sixth and seventh points of error, O'Hara...