In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00078-CR
DAVID ROY MUNDT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 4th District Court Rusk County, Texas Trial Court No. CR24-218
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION
Appellant, David Roy Mundt, was convicted of two counts of aggravated sexual assault
of a child younger than fourteen years of age for which he was sentenced to life for each count to
run consecutively. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (Supp.). In three issues on
appeal, Mundt argues that (1) the trial court erred in denying his motion to suppress, (2) the
evidence was insufficient to support count two of the indictment, and (3) the trial court erred in
stacking his sentences. We find no error in the trial court’s denial of the motion to suppress, and
we hold the evidence was sufficient to support the jury’s conviction on count two of the
indictment. However, as the State concedes, we find that the trial court erred in stacking the life
sentences, and we modify the judgments to reflect that the sentences shall run concurrently to
each other. Accordingly, we affirm the judgments as modified.
I. Motion to Suppress
A. Standard of Review
“We review a trial court’s ruling on a motion to suppress evidence under a bifurcated
standard.” Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021). “We give almost total
deference to the trial court’s findings of fact and review de novo the application of the law to the
facts.” Id. (quoting State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). “When a trial
judge makes express findings of fact, an appellate court must examine the record in the light
most favorable to the ruling and uphold those fact findings so long as they are supported by the
record.” Id. (quoting State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017)). When a trial
court does not make explicit findings, as is the case here, “courts must defer not only to all
2 implicit factual findings that the record will support in favor of [the] trial court’s ruling, ‘but also
to the drawing of reasonable inferences from the facts.’” Amador v. State, 221 S.W.3d 666, 674–
75 (Tex. Crim. App. 2007) (footnote omitted) (citations omitted) (quoting Kelly v. State, 163
S.W.3d 722, 726 (Tex. Crim. App. 2005)). “We will uphold the trial court’s ruling if it is correct
under any applicable theory of law and the record reasonably supports it.” Martin, 620 S.W.3d
at 759.
B. Evidence at the Motion to Suppress Hearing
On July 22, 2024, Mundt was arrested for outstanding traffic tickets and booked into the
county jail. Julia Alexander, a certified medical technician who worked for the Gregg County
Jail, testified that she evaluated Mundt at the county jail when he was booked in as part of a
standard protocol when an inmate makes a medical complaint. When a medical complaint is
received, the individual must be evaluated to determine if they are stable enough to be booked
into jail. Alexander stated that the evaluation involves checking the individual’s vital signs,
blood pressure, and temperature. The individual’s temperature is taken via a probe that is
attached to a rolling medical cart. For each use, a single-use plastic sleeve is placed over the
probe before taking the individual’s temperature.
Alexander testified that she took Mundt’s temperature using the probe covered with a
plastic sleeve, and after doing so, she intended to discard the sleeve. A deputy then requested the
sleeve from Alexander, and she turned it over to him. Alexander explained that the sleeve would
have been discarded.
The trial court denied Mundt’s motion to suppress.
3 C. Analysis
Mundt argues that his “DNA was illegally taken and without his consent under both the
Texas and Federal Constitution,” stating that “there was an invasion of his privacy by taking the
sleeve, also establishing ‘a warrantless taking in violation of the Fourth Amendment and the
Texas Constitution.’” In his motion to suppress, Mundt argued, “The protective cap was
discarded without the consent of Mr. Mundt and then used to obtain Mr. Mundt’s DNA without
his consent. Mr. Mundt was unable to voluntarily discard the protective cap and did not give
consent to offer a sample of his DNA.”
“A person has ‘standing’ to contend that a search or seizure was unreasonable if (1) he
has a subjective expectation of privacy in the place or object searched, and (2) society is
prepared to recognize that expectation as ‘reasonable’ or ‘legitimate.’” State v. Granville, 423
S.W.3d 399, 405 (Tex. Crim. App. 2014) (citing Minnesota v. Olson, 495 U.S. 91, 95–97 (1990)
(“an overnight guest in another’s home has a legitimate privacy interest in that premises and thus
may challenge its search”); Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (“Any
defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must
first show that he personally had a reasonable expectation of privacy that the government
invaded. He must prove that he was a ‘victim’ of the unlawful search or seizure. He has no
standing to complain about the invasion of someone else’s personal rights.”) (footnotes omitted)
(citations omitted))).
4 Texas courts have examined a variety of factors when determining whether someone has
an objectively reasonable expectation of privacy. Long v. State, 535 S.W.3d 511, 529 (Tex.
Crim. App. 2017). Those factors include whether:
(1) the person had a proprietary or possessory interest in the place searched;
(2) the person’s presence in or on the place searched was legitimate;
(3) the person had a right to exclude others from the place;
(4) the person took normal precautions, prior to the search, which are customarily taken to protect privacy in the place;
(5) the place searched was put to a private use; and
(6) the person’ s claim of privacy is consistent with historical notions of privacy.
Id. However, these factors are not exhaustive, and none alone is dispositive; instead, “we
examine the circumstances in their totality.” Id.
A defendant has the burden to prove that a legitimate expectation of privacy existed and
must do so by demonstrating that (1) by his conduct, he exhibited an actual intention “to preserve
[something] as private,” and (2) this “subjective expectation of privacy is ‘one that society is
prepared to recognize as reasonable.’” Smith v. Maryland, 442 U.S. 735, 740 (1979); Oles v.
State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999) (alteration in original) (quoting Katz v.
United States, 389 U.S. 347, 351, 361 (1967) (Harlan, J., concurring)).
“However, the collection of DNA from prisoners has been found to be reasonable in light
of an inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate
government interest in using DNA to investigate crime.” Pollard v. State, 392 S.W.3d 785, 797
5 (Tex. App.—Waco 2012, pet. ref’d) (citing Hudson v. Palmer, 468 U.S. 517, 525–26 (1984)
(“[W]e hold that society is not prepared to recognize as legitimate any subjective expectation of
privacy that a prisoner might have in his prison cell . . . . The recognition of privacy rights for
prisoners in their individual cells simply cannot be reconciled with the concept of incarceration
and the needs and objectives of penal institutions.” (alteration in original)); Groceman v. U.S.
Dep’t of Just., 354 F.3d 411, 413 (5th Cir. 2004) (per curiam); Velasquez v. Woods, 329 F.3d
420, 421 (5th Cir. 2003) (per curiam) (“holding that the collection of DNA samples from felons
does not violate the Fourth Amendment”); Oles, 993 S.W.2d at 108 (“While an appellant is
incarcerated, he has no expectation of privacy in the jail cell . . . .” (alteration in original));
Drewery v. State, No. 08-04-00201-CR, 2005 WL 1791630, at *7–8, (Tex. App.—El Paso July
28, 2005, pet. ref’d) (not designated for publication)).
In the present case, Mundt, an arrestee at the time, did not refuse to have his vitals
checked, which included having his temperature checked. Mundt has presented no evidence that
he made any attempt to secure the single-use thermometer sleeve. “[T]herefore, in this instance,
he did not demonstrate a genuine intention to keep his DNA private.” Pollard, 392 S.W.3d at
798 (citing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (“[A]bandonment is
primarily a question of intent to be inferred from words spoken, acts done, and other objective
facts and relevant circumstances, with the issue not being in the strict property-right sense, but
rather whether the accused had voluntarily discarded, left behind, or otherwise relinquished his
interest in the property so that he could no longer retain a reasonable expectation of privacy with
regard to it at the time of the search.”); Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App.
6 1996) (op. on reh’g) (“We have held that an abandonment of property occurs if (1) the defendant
intended to abandon the property and (2) his decision to abandon the property was not due to
police misconduct.”); Hawkins v. State, 758 S.W.2d 255, 257 (Tex. Crim. App. 1988) (“The
general rule in Texas with respect to abandoned property has been that ‘when police take
possession of abandoned property, there is not a seizure under the Fourth Amendment.’”
(quoting Clapp v. State, 639 S.W.2d 949, 953 (Tex. Crim. App. 1982), overruled by Comer v.
State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988) (op. on reh’g))); Hudson v. State, 205
S.W.3d 600, 604–05 (Tex. App.—Waco 2006, pet. ref’d) (“holding that the warrantless seizure
of a defendant’s DNA from a Dr. Pepper can that was voluntarily thrown in the trash did not
violate the Fourth Amendment because the defendant’s action of throwing the can in the trash
indicated an intent to abandon the can”)).
Because Mundt presented no evidence of his intention to maintain control over the
thermometer probe, his diminished expectation of privacy rights during confinement, “the
minimal intrusion involved, and the legitimate government interest in using DNA to investigate
crime,” we hold that Mundt failed to meet his burden to establish a legitimate expectation of
privacy in either the thermometer sleeve or his own DNA. See id. (citing Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996) (plurality op.)). “Accordingly, we cannot say that the
trial court abused its discretion in denying [Mundt]’s motion to suppress the seizure of his DNA
from the [thermometer sleeve] . . . .” Id. (citing Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.
App. 2010); Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997)). We overrule
Mundt’s first issue.
7 II. Sufficiency of the Evidence as to Count Two
By his second issue, Mundt first challenges the sufficiency of the evidence to support
count two of his conviction “because the State failed to prove penetration.” The State’s
indictment on count two alleged that Mundt “intentionally and knowingly caused the penetration
of sexual organ or anus of . . . a child, who was younger than 14 years of age, by the sexual
organ, of another person, including the defendant.”
A. Standard of Review and Applicable Law
“When reviewing the legal sufficiency of the evidence, we consider whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.” Hiatt v.
State, 319 S.W.3d 115, 119 (Tex. App.—San Antonio 2010, pet. ref’d) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007)). “This standard accounts for the factfinder’s duty ‘to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”
Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319). “Thus, ‘in analyzing legal
sufficiency, we “determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most favorable to
the verdict.”’” Hiatt, 319 S.W.3d at 119 (quoting Clayton, 235 S.W.3d at 778).
“Under a legal sufficiency review, ‘our role is not to become a thirteenth juror. This
Court may not re-evaluate the weight and credibility of the record evidence and thereby
substitute our judgment for that of the fact-finder.’” Williams v. State, 235 S.W.3d 742, 750
8 (Tex. Crim. App. 2007) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).
“The State has no burden to produce any corroborating or physical evidence.” Moore v. State,
No. 10-23-00231-CR, 2025 WL 2170354, at *3 (Tex. App.—Waco July 31, 2025, pet ref’d)
(mem. op., not designated for publication) (citing Jones v. State, 428 S.W.3d 163, 169 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—
Houston [1st Dist.] 2004) (“The lack of physical or forensic evidence is a factor for the jury to
consider in weighing the evidence.”), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006))). “The
child need not directly and explicitly testify as to contact or penetration with the same clarity and
ability of an adult witness to prove these facts beyond a reasonable doubt.” Prestiano v. State,
581 S.W.3d 935, 941 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing Villalon v. State,
791 S.W.2d 130, 133–35 (Tex. Crim. App. 1990)).
The Texas Court of Criminal Appeals has stated,
[S]ufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
At the time of the offense in 1992, the Texas Penal Code required proof of penetration.
See Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws, 80, 80 (amended
1997, 2003, 2017) (current version at TEX. PENAL CODE § 22.021(a)) “‘Penetration’ is not
defined by statute. The Court of Criminal Appeals has therefore afforded this term its ordinary
meaning in the context of aggravated sexual assault, noting that it means ‘to enter into’ or ‘to 9 pass through.’” Prestiano, 581 S.W.3d at 941–42 (quoting Green v. State, 476 S.W.3d 440, 447
(Tex. Crim. App. 2015) (quoting Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App.
1992))). “This definition distinguishes penetration from ‘mere contact with the outside of an
object.’” Id. at 942 (citing Vernon, 841 S.W.2d at 409; accord Villa v. State, 417 S.W.3d 455,
461–62 (Tex. Crim. App. 2013)). “Penetration of the mouth thus occurs whenever an object
parts the lips and passes into or through them.” Id. (citing Dixon v. State, 886 S.W.2d 852, 856
(Tex. App.—Beaumont 1994, pet. ref’d) (“female defendant who forced child to perform oral
sex on her penetrated child’s mouth with her sexual organ as her labia was in child’s mouth”);
Vernon, 841 S.W.2d at 408–10 (“evidence that defendant inserted finger into child’s outer labia
but not into vagina sufficed to prove penetration”); Sherbert v. State, 531 S.W.2d 636, 637 (Tex.
Crim. App. 1976) (“insertion of penis between labia suffices to show penetration even if vagina
not entered”)).
B. Analysis
The victim, N.M., was seven years old at the time of the incident in 1992. At trial, N.M.
testified that she recalls being picked up and carried out of bed “like a baby” and assumed it was
her mother, but when she opened her eyes, it was a man she did not recognize. When she tried to
scream, the man covered her mouth and nose, making it hard to breathe. He then carried N.M.
outside to her backyard. She recalled it felt cool outside and it was starting to become daylight.
Before the man removed his hand from her mouth, he threatened her not to make any noise or he
would “hurt or kill [her] and [her] family.” The man had her “get on all fours,” then removed
her underwear and pushed up her nightgown. N.M. testified that, “[She] didn’t know what was
10 really happening. [She] thought he was kissing [her] private parts. He was just rubbing [her]
and kissing. And [she] think[s] he got scared possibly or heard a noise or something because
very abruptly he ran off.” She explained that as an adult, she now understands what happened
and indicated that the man “also put his penis on [her] privates,” indicating both her vagina and
anus. She testified that she is “confident” that the man “rubbed specifically his penis” on her
private parts.
Jane Roy worked as an emergency room nurse when N.M. was brought in for her sexual
assault examination. Roy testified that she assisted the doctor examine N.M. and noted that the
doctor determined there was no penetration inside of N.M.’s vaginal canal “[b]ut in the area of
her outer genitals, there was.” The patient notes reflect that N.M. “denied any penetration,” but
the examination revealed redness on both sides of N.M.’s outer vaginal area, indicating
penetration of the labia majora. When specifically asked by the State “whether it was obvious
from this notation whether we had penetration of the labia majora,” Roy answered affirmatively.
The State must prove all elements of the offense beyond a reasonable doubt. Sherbert,
531 S.W.2d at 637. Here, the State presented testimony from the emergency room nurse who
assisted in the sexual assault examination, complete with medical records, which described a
degree of redness, tenderness, and trauma on N.M.’s vagina consistent with the level of sexual
abuse recounted by N.M. in her own testimony. While Mundt points to potentially conflicting
testimony or testimony that would support mere touching or contact, rather than penetration, it
was the jury’s duty, as the sole fact-finder, to assess the credibility of the witnesses and to
resolve any conflicts in the evidence or testimony. See Zuniga v. State, 551 S.W.3d 729, 733
11 (Tex. Crim. App. 2018). We presume that the jury resolved any conflicting inferences in favor
of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326. A jury determines the
credibility of the witnesses and may believe all, some, or none of the testimony. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Considering the evidence described above, the
State provided sufficient evidence to support the penetration element of count two against
Mundt. See id. Mundt’s second issue is overruled as it pertains to the sufficiency of the
evidence.
III. The Jury Charge Did Not Create a Fatal Variance
Next, in his second issue, Mundt alleges that the jury charge “erroneously add[ed]
‘contact or penetrate’ in the [sic] Count II instead of just penetrate as the indictment alleged,”
thus “lowering the burden of proof.” Mundt contends that the jury charge failed to track the
language of the indictment, creating a fatal variance requiring acquittal.
“The Court of Criminal Appeals has decreed that a materiality inquiry must be made in
all cases involving a sufficiency of the evidence claim based on a variance between the
indictment and the evidence.” Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d) (citing Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002) (citing
Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001)). “Such a variance will be
considered ‘fatal,’ and thus render the evidence insufficient, only when it is ‘material.’” Id.
(citing Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 257).
“A variance is material if it (1) deprived the defendant of sufficient notice of the charges
against him such that he could not prepare an adequate defense, or (2) would subject him to the
12 risk of being prosecuted twice for the same offense.” Id. (citing Fuller, 73 S.W.3d at 253;
Gollihar, 46 S.W.3d at 257).
Mundt does not provide any argument that the alleged variance met either of the two
materiality prongs but rather solely argues that the word “contact” in the charge “lowered the
burden the State was required to prove.” The jury charge states, under the relevant statutes
section:
As to Count II, a person commits an offense of Aggravated Sexual Assault of a Child, regardless of whether the person knows the age of the child at the time of the offense, if the person intentionally or knowingly causes the sexual organ or anus of a child to contact or penetrate the sexual organ of another person including the defendant.
However, the charge went on to define knowing and intentional penetration, not contact, and the
jury was instructed to find that the State proved every element beyond a reasonable doubt as
charged in the indictment, which alleged penetration only. Because Mundt does not show how
this language either deprived him of notice of the charges against him or created a risk of being
prosecuted twice, we do not find a material variance. See Gollihar, 46 S.W.3d at 257. Further,
to the extent his argument is there was error in the jury charge, Mundt did not present any
argument regarding egregious harm and therefore did not carry his burden on appeal. See Bluitt
v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004) (“An appellant may raise such unobjected-to
charge error on appeal, but may not obtain a reversal for such error unless it resulted in egregious
harm.”). We overrule Mundt’s second issue as it relates to the jury charge.
13 IV. Improperly Stacked Sentences
The State concedes that Mundt’s two life sentences cannot be stacked but rather should
run concurrently. “In 1997, the Legislature amended Section 3.03 to authorize stacked sentences
for convictions for aggravated sexual assault.” Ex parte Bahena, 195 S.W.3d 704, 705 (Tex.
Crim. App. 2006) (orig proceeding) (citing Acts 1997, 75th Leg., R.S., ch. 667, Sections 2(b), 8,
p. 2251, 2253, eff. Sept. 1, 1997 (currently codified in TEX. PENAL CODE § 3.03(b)(2-a))).
These 1997 amendments became effective September 1, 1997, and they provided that the change in law “applies only to an offense committed on or after the effective date of this Act” and that an “offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.”
Id. (citing Acts 1997, 75th Leg., R.S., ch. 667, Section 7(a), (b), p. 2252–53). Here, the offense
occurred in 1992, as alleged in the indictment. Accordingly, Mundt’s two life sentences were
erroneously stacked. Accordingly, the proper remedy is to delete the cumulation order from the
judgment and reform the judgments to reflect that Mundt’s life sentences shall run concurrently.
See Beedy v. State, 250 S.W.3d 107, 113–14 (Tex. Crim. App. 2008) (proper remedy for a
cumulation order that is entered without lawful authority is simply to delete it from the
judgment). Mundt’s third issue is sustained.
14 V. Conclusion
We modify the trial court’s judgments in both counts to delete that portion which states
Mundt’s sentences are to run “CONSECUTIVELY,” and we modify that section to reflect the
sentences shall run “CONCURRENTLY.” As modified, we affirm the judgments of the trial
court.
Charles van Cleef Justice
Date Submitted: January 27, 2026 Date Decided: March 6, 2026
Do Not Publish