Benton, Ernest Glenn

• Court: Court of Appeals of Texas
• Decided: February 11, 2015
• Docket: PD-0161-15
• Status: Published

Opinion

PD-0161-15 PD-0161-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/10/2015 1:30:49 PM Accepted 2/11/2015 4:13:36 PM NO. _______________ ABEL ACOSTA CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________

ERNEST GLENN BENTON, PETITIONER

VS.

THE STATE OF TEXAS ___________________________________________________

PETITION IN CAUSE NO. 2879 FROM THE 100TH JUDICIAL DISTRICT COURT OF COLLINGSWORTH COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS OF AMARILLO, TEXAS, NO. 07-13-00150-CR ___________________________________________________

PETITION FOR DISCRETIONARY REVIEW ___________________________________________________

Respectfully submitted,

BIRD, BIRD & RABE ATTORNEYS AT LAW February 11, 2015 P.O. BOX 1257 CHILDRESS, TEXAS 79201

BY: /s/ Dale A. Rabe, Jr._________ DALE A. RABE, JR., ATTORNEY FOR PETITIONER

TELEPHONE NO.: 940-937-2543 FACSIMILE NO.: 940-937-3431 E-MAIL: birdbirdrabe@gmail.com STATE BAR NO.: 24027638 IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL

1. The trial court presiding judge was the

Honorable Richard Dambold, Visiting Judge, who may

be served with process at P.O. Box 887, Clarendon,

Texas 79226, Facsimile No. 806-874-5146.

2. The Petitioner, Ernest Glenn Benton, is

currently incarcerated in the Texas Department of

Criminal Justice – Institutional Division, and may

be served with process herein at the address of his

court appointed appellate counsel and he is

represented herein by the undersigned counsel whose

address is shown on the front cover of this brief.

The Petitioner, Ernest Glenn Benton, was

represented at trial by Todd Alvey who may be served

with process at his address P.O. Box 1815, Pampa,

Texas 79066, Facsimile No. 806-331-7786.

3. The Appellee, the State of Texas, is

represented on appeal by Luke Inman, 100th Judicial

District Attorney, 800 West Avenue, Box 1,

Wellington, Texas 79095, Facsimile No. 866-233-2738.

2 The Appellee, the State of Texas, was

represented at trial by the same counsel as on

appeal.

3 TABLE OF CONTENTS

Identity of the Judge, Parties, and Counsel 2

Table of Contents 4

Index of Authorities 5

Statement Regarding Oral Argument 6

Statement of the Case 7

Statement of Procedural History of the Case 7

Ground for Review: 7

THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH APPELLANT DID THEN AND THERE ENGAGE IN SEXUAL CONTACT WITH PSEUDONYM DCSO04172012 BY TOUCHING THE GENITALS OF PSEUDONYM DCSO04172012, A CHILD YOUNGER THAN 17 YEARS OF AGE.

Reason for Review 8

Prayer for Relief 10

Appendix 11

Certificate of Compliance 12

Certification of Service 12

4 INDEX OF AUTHORITIES

CASE LAW

Lucio v. State, 351 S.W.3d 878 8 (Tex. Crim. App. 2011)

5 NO. _______________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________________

THE STATE OF TEXAS ___________________________________________________

PETITION IN CAUSE NO. 2878 FROM THE 100TH JUDICIAL DISTRICT COURT OF COLLINGSWORTH COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS OF AMARILLO, TEXAS, NO. 07-13-00149-CR ___________________________________________________

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS OF TEXAS:

STATEMENT REGARDING ORAL ARGUMENT

The ground for review herein involves case

specific facts which are best argued before the

Court. Oral argument may prove helpful to the

Court.

6 STATEMENT OF THE CASE

convicted by a jury of the offense of indecency with

a child by contact after a plea of not guilty; the

punishment was assessed by the jury at life

imprisonment in the Texas Department of Criminal

Justice-Institutional Division. This conviction was

affirmed by the Court of Appeals for the Seventh

District on December 9, 2014.

STATEMENT OF PROCEDURAL HISTORY

The court of appeals rendered its decision

affirming Petitioner’s conviction on December 9,

2014. Petitioner filed his Motion for Rehearing on

December 29, 2014. Petitioner’s Motion for

Rehearing was overruled on January 12, 2015. This

Petition for Discretionary Review was then filed

within thirty (30) days; to wit, on February 10,

2015.

GROUND FOR REVIEW

THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH APPELLANT DID THEN AND THERE ENGAGE IN SEXUAL

7 CONTACT WITH PSEUDONYM DCSO04172012 BY TOUCHING THE GENITALS OF PSEUDONYM DCSO04172012, A CHILD YOUNGER THAN 17 YEARS OF AGE.

REASON FOR REVIEW

It is respectfully submitted that the court of

appeals erred in holding that the evidence at trial

was sufficient to convict Petitioner of the offense

of indecency with a child by contact.

In determining whether the evidence is

sufficient to support a conviction, a reviewing

court must consider all the evidence in a light

most favorable to the verdict and determine, based

on that evidence and the reasonable inferences

drawn therefrom, whether a fact finder could have

found the essential elements of the crime beyond a

reasonable doubt. Lucio v. State, 351 S.W.3d 878,

894 (Tex. Crim. App. 2011).

In the case at bar, Petitioner was charged by

indictment that on or about April 14, 2012,

Appellant did then and there engage in sexual

contact with Pseudonym DCSO04172012 by touching the

8 genitals of Pseudonym DCSO04172012, a child younger

than 17 years of age. 1 CR 2.

The statements of Pseudonym DCSO04172012 are so

inconsistent and contradictory that they are too

unreliable to sustain the conviction of Appellant.

Pseudonym DCSO04172012’s recollection of the events

on April 14, 2012, changed with each person she

spoke with and from day to day at trial. On day one

of trial, Pseudonym DCSO04172012 testified that

Appellant touched her genitals with his mouth. 4 RR

180. On day two of trial, Pseudonym DCSO04172012

testified that Appellant touched her genitals with

his tongue. 5 RR 63. Pseudonym DCSO04172012

testified that Appellant only rubbed baby oil on her

legs. 4 RR 182. Pseudonym DCSO04172012 told Becky

O’Neal that Appellant put baby oil down her back. 4

RR 229.

Due to the age of Pseudonym DCSO04172012, her

testimony is too subject to outside influence to

overlook the inconsistencies in her testimony. With

9 no physical evidence or corroborating testimony,

Pseudonym DCSO04172012’s testimony alone should not

be enough to sustain the guilty verdict found by the

jury in this case.

Based on the foregoing, Petitioner respectfully

requests this Honorable Court grant his Petition for

Discretionary Review.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the Petitioner

respectfully prays this Court grant this petition,

and upon reviewing the judgment entered below,

reverse this cause and remand it for new trial.

BIRD, BIRD & RABE ATTORNEYS AT LAW P.O. BOX 1257 CHILDRESS, TEXAS 79201

BY: /s/ Dale A. Rabe, Jr._________ DALE A. RABE, JR., ATTORNEY FOR PETITIONER TELEPHONE NO.: 940-937-2543 FACSIMILE NO.: 940-937-3431 E-MAIL: birdbirdrabe@gmail.com STATE BAR NO.: 24027638

10 APPENDIX

1. Letter from Court of Appeals December 9, 2014

2. Judgment, Trial Court’s Rulings Affirmed

3. Memorandum Opinion

11 CERTIFICATE OF COMPLIANCE

I hereby certify that the above and foregoing

Petition for Discretionary Review is 1,167 words in

its completion, signed on this the 10th day of

February, 2015, in accordance with the rules

governing same.

/s/ Dale A. Rabe, Jr._____ DALE A. RABE, JR.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy

of the foregoing Petition for Discretionary Review

was delivered as indicated below on this the 10th

day of February, 2015, to the following:

Mr. Luke Inman VIA E-SERVICE District Attorney 800 West Avenue, Box 1 Wellington, Texas 79095

Mr. Ernest Benton VIA CMRRR TDCJ # 01846243 70140510000127094627 2664 FM 2054 Tennessee Colony, TX 75886

/s/ Dale A. Rabe, Jr.____ DALE A. RABE, JR.

12 FILE COPY

BRIAN QUINN Chief Justice Court of Appeals VIVIAN LONG Clerk

JAMES T. CAMPBELL Justice Seventh District of Texas MAILING ADDRESS: MACKEY K. HANCOCK Justice Potter County Courts Building P. O. Box 9540 79105-9540 501 S. Fillmore, Suite 2-A PATRICK A. PIRTLE Justice Amarillo, Texas 79101-2449 (806) 342-2650

www.txcourts.gov/7thcoa.aspx

December 9, 2014

Dale A. Rabe Luke McLean Inman BIRD, BIRD & RABE DISTRICT ATTORNEY P.O. Box 1257 800 West Ave., Box 1 Childress, TX 79201-1257 Wellington, TX 79095 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *

RE: Case Numbers: 07-13-00149-CR, 07-13-00150-CR Trial Court Case Numbers: 2878, 2879

Style: Ernest Glenn Benton v. The State of Texas

Dear Counsel:

The Court this day issued an opinion and judgment in the captioned causes. TEX. R. APP. P. 48.

In addition, pursuant to Texas Government Code, Sec. 51.204(b)(2), exhibits on file with this Court, if any, will be destroyed three years after final disposition of the case or at an earlier date if ordered by the Court.

Very truly yours, Vivian Long VIVIAN LONG, CLERK

xc: Honorable Richard Dambold (DELIVERED VIA E-MAIL) Honorable Stuart Messer (DELIVERED VIA E-MAIL) Jackie Johnson (DELIVERED VIA E-MAIL) FILE COPY

No. 07-13-00150-CR

Ernest Glenn Benton § From the 100th District Court of Appellant Collingsworth County § v. December 9, 2014 § The State of Texas Opinion by Justice Pirtle Appellee §

J U D G M E N T

Pursuant to the opinion of the Court dated December 9, 2014, it is ordered,

adjudged and decreed that the judgment of the trial court be affirmed.

Inasmuch as this is an appeal in forma pauperis, no costs beyond those that

have been paid are adjudged.

It is further ordered that this decision be certified below for observance.

oOo In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00149-CR No. 07-13-00150-CR ________________________

ERNEST GLENN BENTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Collingsworth County, Texas Trial Court Nos. 2878, 2879; Honorable Richard Dambold, Presiding by Assignment

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Ernest Glenn Benton, was tried by a jury and found guilty of

aggravated sexual assault of a child1 (Trial Court Cause No. 2878, Appellate Cause No.

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2014). The indictment alleged Appellant intentionally or knowingly caused the penetration of the sexual organ of the victim, a child who was then and there younger than fourteen years of age, by his mouth. An offense under this section is a felony of the first degree. 07-13-00149-CR) and indecency with a child2 (Trial Court Cause No. 2879, Appellate

Cause No. 07-13-00150-CR), with the punishment range in both offenses being

enhanced by two prior felony convictions.3 The jury found both enhancements to be

true and assessed his sentence in each case at confinement for life. The trial court

ordered the sentences to be served concurrently. By three issues in the aggravated

sexual assault case (07-13-00149-CR), Appellant asserts (1) the trial court erred by

denying his motion for a directed verdict and (2) the evidence was legally and (3)

factually insufficient to establish he caused penetration of the victim’s sexual organ by

his mouth. By two issues in the indecency with a child case (07-13-00150-CR),

Appellant asserts (1) the evidence is legally and (2) factually insufficient to establish he

engaged in sexual contact by touching the victim’s sexual organ. We affirm the trial

court’s judgments.

BACKGROUND

The evidence at trial showed that, on April 14, 2012, the victim was eleven years

old and had been sexually abused by her father since she was nine. Late that night, her

father left his girlfriend’s house and drove the victim to Appellant’s house. On the way,

he displayed a television screen depicting a naked man and woman touching each

other. After arriving at Appellant’s house, she played a card game with her father and 2 See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). Count three of an amended indictment alleged Appellant engaged in sexual contact with the victim, a child under seventeen years of age, by touching the victim’s genitals. An offense under this section is a felony of the second degree. Id. at (d). The State dismissed Counts I and II. 3 The State filed its Notice of Intent to Seek Enhanced Punishment based upon Appellant’s two felony convictions for attempt to commit sexual assault in January 1996 and aggravated assault with a deadly weapon in November 2001. As enhanced, both offenses were punishable by imprisonment for life, or for any term of not more than 99 years or less than 25 years. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).

2 Appellant, while watching television. In Appellant’s bedroom, a television depicted a

naked man and woman touching each other. Later, the victim became tired and wanted

to go to bed. Her father gave her some “Kool-Aid” to drink. She took a sip and poured

the drink out because it tasted funny. She noticed the liquid came from a bottle labeled

blueberry vodka.

She went into the bedroom with the television, turned it off and went to bed.

Approximately, thirty minutes later, she awoke to the sound of the television. It had

been turned back on and was showing naked male and female bodies touching each

other. The victim’s pants had been removed. Her father was in front of her touching his

private parts while Appellant touched her private parts with his mouth and used his

tongue. She had baby oil on her back and bottom and Appellant put baby oil on her

legs. A black light in the bedroom was turned on. The victim got up, put her pants back

on and went into the living room. Appellant told her she looked more beautiful when

she was not wearing her clothes. The victim subsequently reported these events to a

school counselor.

Becky O’Neal, a Sexual Assault Nurse Examiner (SANE), testified the victim

described Appellant putting baby oil down her back and touching her genitalia with his

mouth. She also testified that the mouth can be used, along with the tongue to

penetrate the female sexual organ and that anything that passes the fat outer lips, the

labia majora, touching the inner lips, the labia minora, however slight, is considered to

be penetration. She noted in her exam that the victim’s sexual organ did not show

trauma but testified that such a finding was not inconsistent with the abuse described by

the child.

3 The victim’s counselor at her elementary school testified that the victim

approached her and described the abuse her father had inflicted upon her. She also

told the counselor that she and her father went to Appellant’s house, she was given

blackberry vodka and was in a room with a black light when Appellant rubbed lotion on

her. She also said Appellant had touched her with his hand. She was embarrassed,

nervous and crying. The counselor called child protective services and the victim’s

mother.

Deputy Allen K. Riley served the arrest warrant on Appellant. While searching

Appellant’s house, he found playing cards similar to those described by the victim, a

black light and a near empty bottle of baby oil. One wall in the house was covered with

semi-nude photographs of females in various poses.

After the conclusion of the evidence, the jury found Appellant guilty of the

offenses in both indictments and assessed Appellant’s punishment at confinement for

life. The trial court subsequently issued its judgment in conformance with the jury’s

verdict and this appeal followed.

DISCUSSION

Appellant contends the trial court erred by denying his motion for directed verdict

on the issue of penetration. In that regard, we treat a point of error or issue complaining

about a trial court’s failure to grant a motion for directed verdict as a challenge to the

legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.

App. 1996).

4 Appellant further contends the evidence is both legally and factually insufficient to

support the conviction in each case. In that regard, we note the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense the State is required to prove beyond a reasonable

doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61

L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

Accordingly, Appellant’s issues essentially present a single issue, i.e., whether the

evidence is sufficient to support the verdict in each case. Id. at 895.

Appellant asserts there was insufficient evidence to establish that he penetrated

the victim’s female sex organ with his mouth or tongue or that he engaged in sexual

contact by touching her genitals. Specifically, he contends the testimony of the victim

was “so inconsistent and contradictory that they are unreliable to sustain the conviction

of Appellant.” The State asserts there was sufficient evidence to create a jury issue on

each question and this Court should defer to the jury’s verdict. We agree with the State.

See Steadman v. State, 280 S.W.3d 242, 243-45, 250 (Tex. Crim. App. 2009).

STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE

In determining whether the evidence is sufficient to support a conviction, a

reviewing court must consider all the evidence in a light most favorable to the verdict

and determine, based on that evidence and the reasonable inferences drawn therefrom,

whether a fact finder could have found the essential elements of the crime beyond a

reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (citing

Jackson, 443 U.S. at 318-19 and Brooks, 323 S.W.3d at 895). In conducting our

5 review, we do not sit as a thirteenth juror and may not substitute our judgment for that of

the fact finder by re-evaluating the weight and credibility of the evidence. Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the fact finder

to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable

inferences from basic to ultimate facts. Id. We measure the sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

AGGRAVATED SEXUAL ASSAULT

A person commits the offense of aggravated sexual assault of a child if he

intentionally or knowingly, by any means, causes the penetration of the sexual organ of

a child under seventeen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(b)(i)

(West Supp. 2014). The State may prove penetration by circumstantial evidence, and

the victim need not specifically testify that there was penetration. Villalon v. State, 791

S.W.2d 130, 133 (Tex. Crim. App. 1990). See Murphy v. State, 4 S.W.3d 926, 929

(Tex. App.—Waco 1999, pet. denied). Further, evidence of the slightest penetration is

sufficient to uphold a conviction, so long as it is shown beyond a reasonable doubt.

Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974).

INDECENCY W ITH A CHILD

A person commits the offense of indecency with a child if, with a child younger

than seventeen years of age he engages in sexual contact. See TEX. PENAL CODE ANN.

§ 21.11(a)(1) (West 2011). For purposes of this section, “sexual contact” includes any

6 touching of a child’s genitalia with the intent to arouse or gratify the sexual desire of any

person. Id. at (c)(1).

ANALYSIS

In Vernon v. State, the Court of Criminal Appeals explained that “pushing aside

and reaching beneath a natural fold of skin into an area of the body not usually exposed

to view, even in nakedness, is a significant intrusion beyond mere external contact” and

amounts to “penetration” sufficient to sustain a conviction for aggravated sexual assault.

Vernon v. State, 841 S.W.2d 407, 409-10 (Tex. Crim. App. 1992). The court held that

the evidence of the defendant’s “touching” of the complainant was sufficient to show

“penetration” of the complainant’s female sexual organ where the evidence showed that

the contact was “more intrusive than contact with her outer vaginal lips.” Id. at 409-10

(“it is not ungrammatical to describe Appellant’s touching of complainant in this case as

a penetration, so long as contact with the injured part of her anatomy could reasonably

be regarded by ordinary English speakers as more intrusive than contact with her outer

vaginal lips”).

Here, the victim testified she was undressed when Appellant “touched” her

genitalia with his mouth and used his tongue on her private parts. The SANE nurse

examiner testified the mouth can be used along with the tongue to penetrate the female

sex organ. She further testified that the absence of trauma to the victim’s genitalia was

not inconsistent with the abuse described by the child. In addition, the jury could

circumstantially infer from Appellant’s use of pornography, vodka, a black light and baby

oil that he intended to and did engage in more than simply touching the outside of her

7 genitalia. Based upon this evidence, a reasonable juror could find that Appellant’s

mouth contacted with the victim’s labia minora and, per the definition in Vernon, was a

“penetration” of her sexual organ, i.e., Appellant’s mouth and/or tongue reached beyond

the outer layer of skin comprising the external genitalia or labia majora. See Villa v.

State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (a reasonable juror could find

appellant’s testimony that he put cream on the red area outside the child’s vagina

and/or touched the genitals of the child as an admission of penetration).

In light of this testimony and evidence, we find a reasonable fact finder could

have concluded that Appellant’s mouth and/or tongue penetrated the victim’s sexual

organ and that such touching was done with the intent to arouse or gratify his sexual

desires. Accordingly, we find the evidence sufficient to support the jury’s verdict in each

case and overrule Appellant’s respective issues. See Villa, 417 S.W.3d at 462;

Steadman, 280 S.W.3d at 243-45, 250.

CONCLUSION

The trial court’s judgments are affirmed.

Patrick A. Pirtle Justice

Do not publish.