Opinion
Nos. 14-03-00510-CR, 14-03-00511-CR, 14-03-00512-CR, 14-03-00513-CR
Memorandum Opinion filed October 7, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause Nos. 881,224, 940,494, 940,495, 940,496. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
The jury convicted appellant Alva Zane McGrath, Jr., of two counts of aggravated sexual assault of a child and two counts of indecency with a child. See TEX. PEN. CODE ANN. § 21.11, 22.021 (Vernon 2003 Supp. 2004). After finding an enhancement true, the jury assessed punishment at life imprisonment for each of the two aggravated sexual assault charges and ninety-nine years confinement for each of the indecency charges. The court granted the State's motion to cumulate the sentences; thus, appellant was sentenced by the court to 398 years confinement. Appellant raises eight points of error on appeal. We affirm.
FACTUAL BACKGROUND
In the Summer of 1999, M.M., the complainant's mother, moved into appellant's home. M.M. had three children from her prior marriage, and she had custody of the children every other week for one week at a time. Appellant owned a two-bedroom house with one bathroom and an attached garage. The three children shared a room that was partitioned by a bookshelf, which allowed M.M.'s nine-year-old daughter, K.M., to have her own separate space from her two younger brothers. In February 2001, M.M. and the children moved out of appellant's house, but M.M. and appellant continued their relationship. In June 2001, M.M. and her three children went to appellant's house for dinner. M.M. began preparing dinner, but was unable to finish because she had a severe headache. At approximately 8:00 that evening, M.M. laid down in appellant's bed to help ease her headache, leaving appellant to finish preparing dinner. While her mother slept, K.M. played with appellant's cats in his garage. Appellant came into the garage and led K.M. to the washing machine located nearby. Appellant then picked up K.M., set her on the washing machine, and removed her shorts and panties. K.M. testified that appellant began licking her vagina. The following day, K.M. told her grandmother appellant had "messed with her cookie," which was K.M.'s nickname for her genitals. After K.M. relayed the events to her mother that evening, M.M. took K.M. to the police station and to the emergency room for an examination. A couple of days later, K.M. gave a statement to the Children's Assessment Center, relating the events that occurred at appellant's house. A few days later, Officer Joe Stevens, an investigator with the Pasadena police department, questioned appellant regarding K.M.'s allegations. During the questioning, appellant denied the allegations, but did admit he was interested in thirteen and fourteen-year-old girls. Thereafter, appellant was arrested for aggravated sexual assault of a child. When appellant was arrested, Officer Stevens requested appellant's consent to search his home. Appellant agreed, and Officer Stevens, accompanied by another officer, proceeded to appellant's house. After appellant was unhandcuffed, Officer Stevens read appellant the consent form and then allowed appellant to read the form before signing. Appellant signed the consent form, and the officers proceeded to search appellant's home. They recovered over seven hundred pornographic images, a majority of which depicted children. Fearing she may get into trouble, K.M. did not divulge other sexual acts by appellant until approximately a year and a half later, when the State contacted K.M. to inquire about whether appellant had taken any photographs of her. K.M.'s stepmother questioned K.M. about whether there was anything else she wanted to talk about. K.M. then admitted appellant had sexually assaulted her on other occasions. As a result of the new allegations, K.M. was taken to the Children's Assessment Center to give another statement. Based on both of her statements, appellant was indicted for two counts of aggravated sexual assault of a child and two counts of indecency with a child. The four indictments alleged the following:1. On or about June 11, 2001, appellant caused the sexual organ of K.M. to contact his mouth;
2. On or about July 7, 2000, appellant penetrated K.M.'s sexual organ with his sexual organ;
3. On or about July 7, 2000, appellant engaged in sexual contact by touching her genitals;
4. On or about July 7, 2000, appellant engaged in sexual contact by touching her breasts.During trial, K.M. detailed nine specific events involving sexual activity between her and appellant. The trial lasted several days, after which the jury found appellant guilty of all four charges. Appellant now challenges his conviction by eight points of error.
DISCUSSION
I. Legal Factual Sufficiency In his fourth point of error, appellant challenges the legal and factual sufficiency of the evidence to support the verdict. Appellant specifically alleges in this point of error that (1) the convictions are based on legally insufficient evidence in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and (2) the convictions are based on factually insufficient evidence in violation of Article I, Sections 10 and 19, of the Texas Constitution. Appellant, however, fails to cite any authority or provide any argument regarding how the federal and state constitutions were violated. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) (holding appellant must cite specific legal authority to support argument); King v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (stating that without supporting citations to relevant legal authority and application of that authority to the facts, conclusory argument is insufficient to preserve error). Accordingly, because appellant failed to present adequate briefing on these points of error, we will not address the legal and factual sufficiency of the evidence with regard to specific constitutional provisions. See TEX. R. APP. P. 38.1(h). However, because we must consider every subsidiary issue fairly included, we will address whether the evidence is legally and factually sufficient to support the verdict. Tex.R.App.P. 38.1(e). When reviewing a legal sufficiency claim, we review the evidence in a light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Whether the evidence is legally sufficient is determined as a matter of law; thus, if the evidence is legally insufficient, the case should never have been submitted to the jury. Oldham v. State, 5 S.W.3d 840, 844 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). The same standard applies regardless of whether the state presents direct or circumstantial evidence. Huntley v. State, 4 S.W.3d 813, 814 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (en banc). In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson, 23 S.W.3d at 6-7. We begin the factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004); see Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003); Johnson, 23 S.W.3d at 11. When reviewing the evidence, we must give appropriate deference to the jury findings in order to prevent intruding on the fact finder's role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate, we "must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor." Id. at 8. A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of a child's female sexual organ by any means or causes the penetration of a child's mouth by the sexual organ of the actor if the child is under fourteen years of age. TEX. PEN. CODE ANN. § 22.021(a)(1)(B)(i), (ii) (Vernon Supp. 2004). A person commits the offense of indecency with a child if he engages in sexual contact with a child under the age of seventeen. TEX. PEN. CODE ANN. § 21.11(a), (1) (Vernon 2003). "Sexual contact" is defined under section 21.11(a)(1) as "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" if committed with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(c)(1). Here, appellant contends the evidence is legally and factually insufficient because the complainant's testimony was unbelievable and was impeached by logistical conflicts and inconsistencies. We disagree. In sexual abuse cases, the testimony of the child victim alone is sufficient to support the conviction. Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.-San Antonio 1994, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.). Here, K.M. testified appellant licked her genitals, had sex with her on more than one occasion, made her perform oral sex on him, touched her breasts, and touched his penis to her genitals. Specifically, the first conviction for aggravated sexual assault is supported by K.M.'s testimony that appellant licked her genitals while they were in his garage. The second conviction for aggravated sexual assault required the state to prove appellant had sexual intercourse with K.M.K.M. testified to three separate, specific occasions when appellant had sexual intercourse with her. The third conviction for indecency with a child is supported by either K.M.'s testimony that appellant placed his penis against her genitals or that appellant digitally penetrated her. K.M. also testified that appellant touched her breast just before having sex with her, which is sufficient to support the fourth conviction. Thus, K.M's testimony alone is sufficient to establish the legal sufficiency of the evidence to support each conviction. Accordingly, we hold the evidence is legally sufficient to support appellant's convictions for aggravated sexual assault and indecency. We now consider whether the evidence is factually sufficient to support appellant's convictions. As previously detailed, K.M. testified appellant licked her genitals, had sex with her on more than one occasion, made her perform oral sex on him, touched her breasts, and touched his penis to her genitals. K.M. also testified appellant would show her pornographic movies and ask her to perform those types of acts with him. When appellant was arrested, he denied having possession of any pornographic materials, but the police recovered 786 pieces of pornography, a majority of which represented children. Further, appellant gave a statement to police indicating his preference for young girls. In his statement, appellant also claimed he did not initiate any sexual acts with K.M.; rather, appellant claimed K.M. instigated the activity by calling him into the shower to show him her vagina and trying to put his hand down to her private parts. On appeal, appellant contends K.M.'s testimony was inconsistent because her trial testimony detailed more acts than previously claimed at the Children's Assessment Center. Appellant claims these inconsistencies rendered her testimony unbelievable. Appellant also argues that because there was no physical medical evidence, K.M.'s allegations were fabricated. Appellant's contentions, however, attack the weight of the evidence, not its sufficiency. The jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence; thus, the jury is entitled to believe or disbelieve all or part of a witness's testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Viewing the evidence in a neutral light, we cannot say the evidence of guilt, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Therefore, we hold the evidence is factually sufficient to support the jury's findings of guilt. Accordingly, we overrule appellant's fourth point of error.II. Voir Dire
In his first point of error, appellant contends the trial court erred in denying him the opportunity to reopen voir dire in order to question a juror selected to serve on the panel. Appellant argues the trial court's actions deprived him of a fair and impartial jury in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Texas Constitution. At the end of voir dire, the trial court announced the names of the twelve members of the jury and named one alternate. Shortly thereafter, a selected juror, Juror Number 19, requested to speak with the court. Outside the presence of the jury, Juror Number 19 stated he was certain his presence would not be beneficial to the court because he was very sheltered and considered this type of crime very shocking. The court asked Juror Number 19 if there was anything specifically about appellant that was objectionable, to which Juror Number 19 responded negatively. The court then asked Juror Number 19 if he could apply the presumption of innocence to appellant. Juror Number 19 responded, "I don't know. I'm questioning all of it right now because I was picked." Shortly thereafter, appellant's counsel asked the court if she could "intervene," but the court denied her request. Appellant now claims that denial violated his right to a fair and impartial jury. The trial court's decision to restrict voir dire is reviewed for an abuse of discretion. Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App. 2003). A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. Id. at 755-56. To preserve error regarding the manner of voir dire, appellant must show that he was prevented from asking particular questions that were proper. Id. at 756; Caldwell v. State, 818 S.W.2d 790, 794 (Tex.Crim.App. 1991), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 533-34 (Tex.Crim.App. 1995); S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.-Houston [14th Dist.] 1996, pet. denied). Appellant contends that asking the court to intervene was sufficient to preserve his complaint on appeal. We disagree. To preserve his complaint, appellant must detail to the court the particular question that he wished to ask Juror Number 19. As we previously stated in Godine v. State:A trial court should not be expected to separate the wheat from the chaff, cull out potentially valid subject matters from overly broad topic descriptions, and anticipate the form in which a specific question emanating from a topic will be asked. To preserve error, it behooved Godine to (1) present to the trial court specific questions formulated in the manner they were to be asked, and (2) obtain an adverse ruling. Godine failed to present the trial court with information in a format suitable for efficient judicial review. Godine thereby failed to preserve error.Godine v. State, 874 S.W.2d 197, 200-01 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (citations omitted). Here, because appellant failed to present a specific question to the trial court regarding Juror Number 19, he has failed to properly preserve this issue on appeal. Accordingly, we overrule appellant's first point of error.
III. Cruel Unusual Punishment
In his second point of error, appellant contends his sentences constitute cruel and unusual punishment, prohibited by (1) the Eighth Amendment of the United States Constitution; (2) Article I, Section 13 of the Texas Constitution; and (3) article 1.09 of the Texas Code of Criminal Procedure. With regard to the Texas Constitution and the Texas Code of Criminal Procedure, appellant's brief fails to provide any arguments, cite any relevant authority, or apply such relevant authority to the specific facts of this case. See TEX. R. APP. P. 38.1(h); Rhoades, 934 S.W.2d at 119; King, 17 S.W.3d at 23. Accordingly, we hold this issue, as it relates to Article I, Section 13 of the Texas Constitution and article 1.09 of the Texas Code of Criminal Procedure, is waived. Additionally, appellant contends Section 12.42(c)(2)(B)(v) of the Texas Penal Code, the enhancement provision, violates (1) the Eighth Amendment of the United States Constitution; (2) Article I, Section 13 of the Texas Constitution; and (3) article 1.09 of the Texas Code of Criminal Procedure. Appellant, however, fails to provide any analysis or cite any authority in support of his challenge to the constitutionality of Texas Penal Code Section 12.42(c)(2)(B)(v). Accordingly, because appellant failed to adequately brief this subissue, his challenge to the constitutionality of Section 12.42(c)(2)(B)(v) is waived. TEX. R. APP. P. 38.1(h); Rhoades, 934 S.W.2d at 119; King, 17 S.W.3d at 23. Thus, the only remaining subissue of appellant's second point of error concerns whether his sentences violate the Eighth Amendment's prohibition against cruel and unusual punishment. The Eighth Amendment, which is applicable to the states by virtue of the Fourteenth Amendment, requires that a state criminal sentence be proportionate to the crime for which the defendant has been convicted. U.S. CONST. amend. VIII; Solem v. Helm, 463 U.S. 277, 290 (1983); Baldridge v. State, 77 S.W.3d 890, 893 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). This prohibition against grossly disproportionate punishment survives under the Eighth Amendment apart from any consideration of whether the punishment assessed was within the statutory range. Id. In conducting an Eighth Amendment analysis, we must first compare the gravity of the offense against the severity of the sentence to determine if the sentence was grossly disproportionate to the offense. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). If the sentence is grossly disproportionate, we must then compare that sentence to sentences imposed for similar crimes in the same and other jurisdictions. Id. Punishment will be considered grossly disproportionate only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. Hicks v. State, 15 S.W.3d 626, 632 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). We should be reluctant to review legislatively mandated terms of imprisonment. Solem, 463 U.S. at 290. We must grant substantial deference to the broad authority legislatures necessarily possess in determining the types and limits of punishments for crimes; thus, a reviewing court will rarely be required to engage in an extended analysis to determine that a sentence meets constitutional muster. Id. at 290 n. 16. Accordingly, successful challenges to the proportionality of particular sentences should be exceedingly rare. Rummel v. Estelle, 445 U.S. 263, 272 (1980). Such extreme cases may arise "if a legislature made overtime parking a felony punishable by life imprisonment." Id. at 274 n. 11. The United States Supreme Court has also recognized that harsher punishments are constitutionally permissible for those who have shown that they are incapable of complying with the criminal laws defining the norms of society. Rummel, 445 U.S. at 276. Additionally, recidivist statutes, such as Texas Penal Code section 12.42, seek to deter repeat offenders, and for those who do repeat, segregate that person from society for an extended period of time based not only on that person's most recent offenses, but on the propensities demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. TEX. PEN. CODE ANN. § 12.42 (Vernon Supp. 2004); Rummel, 445 U.S. at 284; Hicks, 15 S.W.3d at 632. "[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." Rummel, 445 U.S. at 285. We must first objectively determine whether appellant's crimes — two counts of aggravated sexual assault of a nine-year-old child and two counts of indecency with a child by sexual contact — warrant the punishment assessed. McGruder, 954 F.2d at 316. In making this initial comparison, we may consider the harm caused or threatened to the victim or society, and the culpability of the offender. Solem, 363 U.S. at 292. Additionally, we may consider the magnitude of the crime; for example, aggravated sexual assault of a child under fourteen years of age versus sexual assault. Id. at 293; see TEX. PEN. CODE ANN. § 22.011, 22.021. The legislature has determined that aggravated sexual assault of a child is a first degree felony, punishable by imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years and a fine of up to $10,000. See Tex. Pen. Code Ann. § 12.32(a), 22.021(e) (Vernon 2003 Supp. 2004). Additionally, the legislature's recidivist statute mandates imprisonment for life if that person has been previously convicted of indecency with a child, sexual assault, or aggravated sexual assault. TEX. PEN. CODE ANN. § 12.42(c)(2). Thus, the legislature's harsh punishments imposed on a person convicted of aggravated sexual assault, especially where that person has previously been convicted of a similar crime, demonstrate the seriousness of the crime. Indeed, only punishment for a capital felony may require a more severe sentence. See Tex. Pen. Code Ann. § 12.31 (Vernon 2003). Additionally, the legislature has determined that indecency with a child by sexual contact is a second degree felony. TEX. PEN. CODE ANN. § 21.11(a)(1), (d) (Vernon 2003); cf. TEX. PENAL CODE ANN. 22.11(a)(2), (d) (providing indecency with a child by exposure is a third degree felony). A second degree felony is punishable by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years and a fine of up to $10,000. TEX. PEN. CODE ANN. § 12.33 (Vernon 2003). However, if an individual is convicted of a second degree felony and has been once before convicted of a felony, that person shall be punished for a first degree felony. Tex. Pen. Code Ann. § 12.42(b). As demonstrated by the legislature's harsh treatment of first time and repeat offenders, appellant's crimes are extremely severe. Appellant concedes his punishments were assessed within the limits prescribed by statute; however, appellant argues that his combined 398 year sentence constitutes cruel and unusual punishment because the gravity of the offenses are grossly disproportionate to the severity of the punishment. Appellant contends the "imposition of consecutive sentencing by the court result[ed] in Appellant having no hope of ever being eligible for parole in his natural lifetime because he is a 48-year old man. If the court ran the sentences concurrently Appellant may have a glimmer of hope of being released back to society in his senior years. The sentences were far too severe in comparison to the gravity of the alleged offenses." In support of his argument, appellant contends that because K.M. has not shown visible signs of mental or physical trauma, his sentences are too severe. Appellant's argument, however, incorrectly frames the issue; the gravity of the offense is not measured solely by the harm caused the victim. Solem, 363 U.S. at 292-93. Appellant's argument must fail because he examines his conduct and his sentences in a vacuum, overlooking his past and recent conduct; however, our review is not so limited. See Hicks, 15 S.W.3d at 632 (holding that we look at the person's more recent offense as well as the propensities he has demonstrated by his prior conduct). Appellant's sentences were imposed to reflect the seriousness of his most recent offenses, not as they stand alone, but in light of his prior offenses. See McGruder, 954 F.2d at 316. Appellant was not convicted of a single nonviolent, minor offense; rather, appellant was convicted of two counts of aggravated sexual assault of a child, a first degree felony, and two counts of indecency with a child, a second degree felony. The harm threatened to K.M. and to society is great because appellant's victims are young, innocent, and helpless girls. Additionally, K.M. was not appellant's first victim. During the punishment phase of trial, appellant's daughter testified to events that ultimately led to appellant's court-martial and dishonorable discharge from the military. The charges in the court-martial were attempted carnal knowledge, sodomy with a child under the age of sixteen, two counts of an indecent act upon the body of a female under sixteen years of age, and indecent liberties upon the body of a female under the age of sixteen. Further, as part of the investigation surrounding his court-martial, over two dozen explicit pornographic movies were discovered in appellant's house. Appellant confessed to some, if not all, of the charges alleged in the court-martial. After his court-martial proceedings were completed, appellant was sentenced to nine years at Fort Leavenworth, and after serving four years, he was released in 1994. Appellant's release from Fort Leavenworth was conditioned on him not having any contact with his daughter, and not having any contact with minor females without the approval of his probation officer. During the guilt/innocence phase of trial, K.M. testified to multiple acts committed by appellant, including oral and vaginal sex, digital penetration, touching of her breasts with his hands, and touching of her genitals with his hands and penis. Additionally, when the police conducted a search of appellant's residence, approximately 786 pieces of pornography were recovered, a majority of which consisted of child pornography. Appellant possessed videos and pictures, including several close-up pictures of a female child's genitalia and videos depicting children engaging in sexual acts with adults. When the officers first discovered the pornographic material on appellant's computer, he responded that he downloaded an image several years ago and had forgotten he still had it. Officers also found a document entitled "Pedophile" that discussed an individual accused of molesting and impregnating his daughters. In this document, the accused discussed how to avoid prosecution, which included his tactic of claiming the children were coming on to him sexually. In appellant's statement to police, he not only indicated his preference for thirteen and fourteen-year-old girls, but he claimed K.M. was coming on to him sexually. Appellant's fiancee testified during the punishment phase of trial. She stated that she met appellant in January 2002, approximately six months after K.M.'s first outcry statement. She has three daughters, ages fourteen, sixteen, and seventeen, and although she knew of the charges appellant faced, she did not believe he was guilty. She knew limited details about appellant's previous court-martial and, trusting appellant, believed the military made a mistake. However, she could not recall appellant mentioning that he confessed to those crimes. Appellant has multiple prior convictions based on similar conduct while he was serving in the military. Based on the severity of the crimes and appellant's criminal history, we hold appellant's sentences for aggravated sexual assault and indecency with a child, even though consecutive, do not violate the Eighth Amendment's prohibition against cruel and unusual punishment. Rummel, 445 U.S. at 265-66, 276 (holding sentence of life imprisonment under Texas recidivist statute for felony offense of obtaining $120.75 by false pretenses did not violate Eighth Amendment, where appellant was previously convicted of passing a forged check in the amount of $28.36 and fraudulently using a credit card to obtain $80 worth of goods or services); United States v. Yousef, 327 F.3d 56, 163 (recognizing that appellant's sentence, even if well beyond his life expectancy, was not grossly disproportionate to his crimes); United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998) (recognizing that while total sentence was harsh as compared to other similarly situated defendants, the consecutive sentencing was not grossly disproportionate given the defendant's repeated use of guns to commit serious crimes); United States v. Saccoccia, 58 F.3d 754, 762, 789 (1st Cir. 1995) (upholding 660 year sentence for racketeering, money laundering, and other related offenses); United States v. Parker, 877 F.2d 327, 333-34 (5th Cir. 1989) (upholding defendant's punishment of two consecutive life sentences for conspiracy and kidnaping); Smallwood v. State, 827 S.W.2d 34, 38 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (holding that based on defendant's nine prior felony convictions, his fifty-year sentence for shoplifting less than $30 of meat was not cruel and unusual under the Eighth Amendment). Comparing the gravity of the offenses to the severity of his sentence, we cannot say appellant's punishment is grossly disproportionate to his offenses in violation of the Eighth Amendment of the United States Constitution. Accordingly, we overrule appellant's second point of error.IV. Double Jeopardy
In his third point of error, appellant contends his multiple convictions and the enhancement provision of the Texas Penal Code violate the double jeopardy clause of the Federal and State Constitutions. Specifically, appellant argues (1) his convictions violate the federal and state constitutional guarantee against multiple punishments for the same offense, and (2) Texas Penal Code section 12.42(c)(2)(B)(v), which provides for an automatic life sentence for repeat sexual offenders, violates the state and federal constitutional guarantee against multiple punishments for the same offense. Specifically, appellant contends the Fifth and Fourteenth Amendments of the Federal Constitution, and Article I, Section 14 of the Texas Constitution were violated. Appellant, however, does not argue that the Texas double jeopardy clause differs from the Fifth Amendment of the United States Constitution. Because appellant has not provided separate argument or analysis on his constitutional claims, we will consider the double jeopardy point of error only under the federal constitution. See Lape v. State, 893 S.W.2d 949, 954 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd); Hutchins v. State, 992 S.W.2d 629, 630 (Tex.App.-Austin 1999, pet. ref'd, untimely filed). Additionally, appellant failed to present any argument or authority regarding Texas Penal Code section 12.42(c)(2)(B)(v); thus, appellant has also waived this issue on appeal. TEX. R. APP. P. 38.1(h). Accordingly, the only remaining subsidiary issue in appellant's third point of error is whether his multiple convictions violate the federal constitution's double jeopardy protections. The double jeopardy clause of the United States Constitution protects against multiple punishments for the same offense as well as multiple prosecutions for the same offense after a conviction or an acquittal. State v. Perez, 947 S.W.2d 268, 270 (Tex.Crim.App. 1997). The threshold question in either case is whether the defendant is being punished or prosecuted for the "same offense." Id. An offense is included within another if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (Vernon 1981). Where the indictment alleges separate and distinct acts of aggravated sexual assault and indecency with a child that are proven by different conduct, the offenses are separate and distinct for double jeopardy purposes. Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App. 1999). Likewise, when the same act violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other. Blockburger v. United States, 284 U.S. 299, 304 (1932); DeMoss v. State, 12 S.W.3d 553, 559 (Tex.App.-San Antonio 1999, pet. ref'd). Thus, greater inclusive and lesser included offenses are the same for jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App. 1994). Our focus is on "whether the evidence justified the trial court in submitting instructions that would permit the jury to convict and sentence appellant both for committing aggravated sexual assault and for committing indecency with a child." Ochoa v. State, 982 S.W.2d 904, 907 (Tex.Crim.App. 1998). Generally, to preserve a double jeopardy claim, a defendant must object at or before the time when the charge is submitted to the jury. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App. 2000). A defendant, however, is excused from the preservation requirement "[1] when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and [2] when enforcement of usual rules of procedural default serves no legitimate state interests." Id. at 643. Here, appellant failed to object at or before the time when the charge was submitted to the jury, and he raised his double jeopardy complaint for the first time in his motion for new trial. Therefore, appellant must meet both prongs before we may consider this issue on appeal. Id.; Murray v. State, 24 S.W.3d 881, 888-89 (Tex.App.-Waco 2000, pet. ref'd). We first address whether it is apparent from the record that appellant's multiple convictions for aggravated sexual assault and indecency with a child constitute a double jeopardy violation. The first indictment alleges appellant committed the offense on or about June 11, 2001, and the second, third, and fourth indictments allege appellant committed the offenses on or about July 7, 2000. When the indictment uses the "on or about" language, the jury may convict the defendant if it finds he committed the acts at some time prior to the presentment of the indictment, but within the limitations period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997); Mireles v. State, 901 S.W.2d 458, 459-61 (Tex.Crim.App. 1995). Appellant's first indictment, alleging aggravated sexual assault, is based on the incident in the garage in June 2001, when appellant licked K.M.'s genitals. The second indictment, also alleging aggravated sexual assault, could be based on K.M.'s testimony that while living at appellant's house, appellant's sexual organ penetrated her sexual organ (1) while she was taking a shower, (2) on another occasion when she was in the bathroom, or (3) when she was watching television after everyone except her and appellant had gone to bed. The fourth indictment, alleging indecency with a child, is supported by K.M.'s testimony that one night appellant squeezed her breasts before having sex with her. Appellant argues the third indictment, touching of K.M.'s genitals, could be a lesser-included offense of the second indictment, which alleged appellant's sexual organ penetrated K.M.'s sexual organ. Appellant's argument, however, would be valid only (1) if the evidence showed that the only act of sexual contact committed by appellant on or about July 7, 2000, was the contact incident to appellant's penetration of K.M. with his penis, or (2) if the charge required the jury to find appellant touched K.M. with this penis. See Hutchins, 992 S.W.2d at 633. K.M.'s testimony, however, showed that on one occasion, appellant placed his penis on the outside of her panties and started masturbating, and on another occasion, appellant put his finger inside of her. Either act would be sufficient to support the third indictment, and both are separate and distinct acts from penetration of her female sexual organ by appellant's penis. Accordingly, because appellant has not shown that his conviction for indecency with a child is based on the same conduct underlying his convictions for aggravated sexual assault of a child, he is unable to prove a double jeopardy violation is apparent on the face of the record. Because the alleged double jeopardy violation is not apparent on the face of the record, we hold appellant has failed to meet his burden. Gonzalez, 8 S.W.3d at 643, 645. However, even if appellant did not waive his double jeopardy complaint, we hold there was not a double jeopardy violation in this case. Here, appellant was charged and convicted of two violations of Texas Penal Code section 21.11 and two violations of Texas Penal Code section 22.021. Because each violation is based on different conduct, each is a separate and distinct offense for double jeopardy purposes. Ochoa, 982 S.W.2d at 908. Thus, the double jeopardy clause was not violated when appellant was convicted of these four separate offenses. See id. Accordingly, we overrule appellant's third point of error.V. Admission of Evidence
Appellant alleges in his fifth point of error the trial court admitted irrelevant and prejudicial evidence in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 13 and 19 of the Texas Constitution, and article 1.04 of the Texas Code of Criminal Procedure. Appellant, however, does not cite any authority or provide any analysis supporting his constitutional challenges or alleged violation of the code of criminal procedure. Accordingly, we hold appellant has waived error, if any, as to whether the trial court's actions violated his rights under the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. TEX. R. APP. P. 38.1(h); Rhoades, 934 S.W.2d at 119. However, pursuant to Texas Rule of Appellate Procedure 38.1(e), we will address any subsidiary issue that is fairly included in the stated point of error. TEX. R. APP. P. 38.1(e). While appellant's constitutional and code of criminal procedure challenges are waived, he nevertheless contends the trial court abused its discretion in admitting (1) evidence of child pornography seized from appellant's residence, (2) a statement given by appellant to police that he was interested in thirteen and fourteen-year-old girls, and (3) evidence that he was dishonorably discharged from the military. Appellant argues each was an extraneous offense and should have been excluded under Texas Rules of Evidence 404(b) and 403. We will review each contention to determine whether the trial court abused its discretion in admitting the challenged evidence. A. Pornographic Images Appellant first challenges the admission of 786 pieces of pornography during the guilt/innocence phase of trial. Detective Stevens, one of the arresting officers, testified on behalf of the State that after conducting a search of appellant's residence, 786 pieces of pornography were found, a majority of which was child pornography. The State then offered the pornographic images into evidence. Appellant objected to admission of the images, citing the court to objections raised in his previously filed motions to suppress. Without deciding whether referring to another previously filed document was sufficient to preserve error, appellant's motions to suppress do not raise the same contentions now alleged on appeal. The motions sought to suppress the images based on an illegal arrest, and subsequently an illegal search; however, appellant contends on appeal the images should have been excluded under Texas Rules of Evidence 404(b) and 403. Because he raises different arguments on appeal, we hold appellant has waived error, if any, regarding admission of the 786 pieces of pornography. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990) ("An objection stating one legal basis may not be used to support a different legal theory on appeal."). B. Statement to Police Appellant also contends the trial court abused its discretion in admitting his statement to police that he was interested in thirteen and fourteen-year-old girls. A few days after K.M. made her first outcry statement, Detective Stevens questioned appellant regarding the charges. Appellant agreed to give a statement, during which time Detective Stevens asked appellant "What age are you interested in? What age excites you? What age turns you on?" Appellant responded, "Thirteen (13), fourteen (14) years old. It's something I've dealt with and, as far as I'm concerned, I have good control over. I don't crave over the kids. I don't have fantasies." During trial, appellant objected to the admission of the statement because it was "too prejudicial" and also should be excluded as an extraneous offense under Texas Rule of Evidence 404(b). Appellant properly preserved this point of error for review. TEX. R. APP. P. 33.1(a). We first address whether the statement was inadmissible under Rule 404(b). Rule 404(b) provides: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." TEX. R. EVID. 404(b). To constitute an extraneous offense, the evidence must show a crime or bad act and the defendant's connection to it. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993). "This necessarily includes some sort of extraneous conduct on behalf of the defendant which forms part of the alleged extraneous offense." Id. Because actual conduct is required, appellant's thoughts, interests, or fantasies, are not excludable under Rule 404(b). See Massey v. State, 933 S.W.2d 141, 153-54 (Tex.Crim.App. 1996) (holding testimony pertaining to thoughts, not conduct, did not implicate Rule 404(b)); Moreno, 858 S.W.2d at 463 (holding inchoate thoughts are not excludable under Rule 404(b)). Here, appellant's statement to police that he was interested in thirteen and fourteen-year-old girls is not conduct that is excludable under Rule 404(b); rather, his statement merely constitutes his thoughts and preferences. Therefore, we hold the trial court did not abuse its discretion in allowing appellant's statement over his Rule 404(b) objection. We next determine whether the trial court abused its discretion by not excluding the statement under Texas Rule of Evidence 403. Under Rule 403, evidence may be excluded, even though relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. We begin by recognizing that "Rule 403 `favors admission of relevant evidence and implies a presumption that relevant evidence will be more probative than prejudicial.'" Massey, 933 S.W.2d at 154 (quoting Brimage v. State, 918 S.W.2d 466, 505 (Tex.Crim.App. 1994)). Additional relevant criteria for reviewing the trial court's action include, whether the State had other evidence to establish the ultimate issue, and whether that evidence was particularly compelling. Moreno, 858 S.W.2d at 464. Appellant's statement that he was interested in, excited by, and turned on by thirteen and fourteen-year-old girls was highly probative of his motive, intent, and state of mind. In looking at the relevant criteria, appellant's admission was the only evidence of his intent and state of mind, and, standing by itself, the evidence was very compelling. Appellant argues the statement was not probative because K.M. was nine years old at the time of the offense, not thirteen or fourteen. Appellant's distinction, however, does not decrease the probative value of his statement, and while the prejudicial effect of the statement is great, the prejudicial effect does not substantially outweigh the probative value. Accordingly, we hold the trial court did not abuse its discretion in admitting appellant's statement into evidence. C. Dishonorable Discharge Finally, appellant challenges the trial court's admission of appellant's dishonorable discharge from the military during the guilt/innocence phase of trial. Appellant again argues the testimony was inadmissible under Texas Rules of Evidence 403 and 404(b). During trial, the judge prohibited the State from mentioning appellant's court-martial, but ruled that the State could extract testimony that appellant was dishonorably discharged from the military. Appellant objected, claiming the dishonorable discharge should also be excluded because it was "highly prejudicial" and "brings up the possibility of the specter of an extraneous offense or bad act." The trial court overruled appellant's objections, and allowed the State to ask appellant's mother whether he was dishonorably discharged from the military after sixteen years of service. However, even assuming, without deciding, the trial court abused its discretion in admitting evidence of appellant's dishonorable discharge, we hold the error, if any, is harmless. Texas Rule of Appellate Procedure 44.2(b) provides any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). The erroneous admission of an extraneous offense or bad act does not constitute constitutional error; therefore, we must disregard the alleged error if appellant's substantial rights are unaffected. Peters v. State, 93 S.W.3d 347, 354 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Substantial rights are not affected "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Thus, we must determine whether the error had a substantial or injurious effect on the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Id. We may also consider the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments, and even voir dire, if material to appellant's claim. Id. After examining the entire record, we hold the admission of appellant's dishonorable discharge, if error, was harmless. During the entire lengthy trial, the State only elicited the fact that appellant was dishonorably discharged from the military one time, during appellant's mother's cross-examination. The testimony elicited at trial from appellant's mother relating to the dishonorable discharge is repeated here verbatim:Q: What branch of the military was he in?
A: Air Force.
Q: How long was he in the Air Force?
A: Sixteen years.
Q: And he was dishonorably discharged; is that correct?
A: Yes.The State did not inquire into the underlying facts resulting in the dishonorable discharge and did not emphasize or even repeat the fact that appellant was dishonorably discharged during any other part of the trial. Additionally, there was substantial evidence supporting the jury's verdict apart from appellant's dishonorable discharge. Given the record before us, we conclude the error, if any, in the admission of testimony concerning appellant's dishonorable discharge did not influence the jury, or had only a slight effect. Accordingly, we overrule appellant's fifth point of error.