Eric Bledsoe v. State

479 S.W.3d 491, 2015 WL 6687491
Court of Appeals of Texas·Decided October 29, 2015·No. NO. 02-14-00450-CR·Published·Cited by 7 cases

Opinions

OPINION

LEE GABRIEL, JUSTICE

Appellant Eric Bledsoe appeals from, his convictions 'for aggravated sexual assault of a child under six and indecency with a child.- We conclude that-the judgment for aggravated sexual assault- should be modified to clearly reflect that it involved a child younger than six, .But. because we find no other error in the trial. court’s judgment, we affirm it as modified. We also affirm the trial court’s judgment for indecency with a child.

I. BACKGROUND

Approximately-four weeks after S.L.’s fourth birthday on February 21, 2013, S.L. told her mother, A.L., .that Bledsoe, who [494] was S.L’s step-grandfather, had earlier told S.L. that she could use his penis as a pacifier and asked her to “squish” his per nis. S.L. denied using his penis as a pacifier but did admit that she had “squeeze[ed]” Bledsoe’s penis with her hands. A.L. called her mother, who was married to Bledsoe, to report the child’s allegations. A.L.’s mother confronted Bledsoe. Bledsoe asserted that he had accidentally exposed himself to S.L. and that S.L. then had “kissed” his penis. A few days after S.L.’s outcry to A.L., S.L. told Joy Hallum, a forensic interviewer, that Bledsoe had “poke[dj” inside her vagina with his finger. S.L. also reported to a sexual-assault nurse examiner, Rebecca Sullivan, that Bledsoe had put his finger inside her sexual organ.

A. grand jury indicted Bledsoe with aggravated sexual .assault of a child under the age of six — “intentionally or knowingly cause the, penetration of the sexual organ of [S.L.], a child younger than 6 years of age, by inserting his finger into her sexual organ” (count one). See Tex. Penal Code Ann. § 22.021 (West Supp.2014). In the same indictment, the grand jury also indicted Bledsoe with indecency with a child — “intentionally, with the intent to arouse or gratify [his] sexual desire ..., engage in sexual contact with [S.L.], a child younger than 17 years, by causing [S.L.] to touch the sexual organ of [Bled-r soe]” (count two). See id. § 21.11(a)(1) (West 2011).

Before trial, the State notified Bledsoe of its intent to offer A.L.’s and Hallum’s testimony regarding S.L.’s outcry state1 ments to them. See Tex. Code Grim. Proc. Ann. art. 38.072, § 2 (Wfest Supp.2014). Both testified at trial. Sullivan also testified for the State about her medical examination of S.L. During Sullivan’s, testimony, Bledsoe lodged a hearsay objection to the State’s question regarding what S.L. told her about the offense during the exam. The trial court overruled Bledsoe’s hearsay objection, and Sullivan testified that S.L. had stated that Bledsoe had put his finger inside her female sexual organ and that she had squeezed his penis with her hands, At trial, S.L. denied that Bledsoe had penetrated her sexual organ and testified that he had touched “on the skin of’ but “outside” her sexual organ. S.L. stated that it hurt when Bledsoe touched her sexual organ.

A jury found Bledsoe guilty of count one and count two. The jury assessed his punishment at 60 years’ confinement for count one and at 20 years’ confinement for count two. The trial court entered judgments accordingly. Bledsoe n'ow appeals and argues that his trial counsel was constitutionally ineffective, the jury charges at guilt-innocence and at punishment contained error, the trial court erred by overruling Bledsoe’s hearsay objection to Sullivan’s testimony, and the evidence of penetration was insufficient. The State asserts in a cross-issue that the trial court’s judgment ip count one should be modified to clearly show that Bledsoe was convicted of aggravated, sexual assault of a child under six years old.

II. BLEDSOE’S ISSUES

A. Sufficiency of the Evidence

In his fifth issue, Bledsoe argues that the evidence was insufficient to prove he penetrated S.L.’s sexual organ. In our due-process review of the sufficiency of the evidence to support a conviction, we view-all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential, elements of the crime beyond a reasonable doubt-. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 660 (1979); Dobbs v. State, 434 S.W.3d 166, 170. (Tex.Crim.App.2014). [495] When performing an evidentiary sufficiency review, we may not re-evaluate the weight and. credibility of the evidence or substitute our judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010).

Hallum and Sullivan testified that S.L. stated shortly after the offense that Bled-soe had poked her sexual organ with his finger and put his finger inside. At trial, S.L. denied Bledsoe penetrated her sexual organ. Any conflict between S.L.’s prior statements to Hallum and Sullivan and her trial testimony created a credibility issue for the jury to resolve. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Dobbs, 434 S.W.3d at 170, The jury was free to disbelieve S.L.’s trial testimony. . S.L.’s statements to Hallum and Sullivan alone were sufficient to prove.. penetration.... See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991) (holding recantation does not destroy probative value of outcry statement and fact-finder is free to disbelieve recantation). We- overrule Bledsoe’s fifth issue.

B. Admission op Sullivan’s Testimony

Bledsoe argues in his fourth issue that the trial court abused its discretion by admitting Sullivan’s testimony rer garding. S.L.’s outcry statements to her. At trial,. Bledsoe objected that Sullivan’s testimony was inadmissible hearsay, and the State asserted that her testimony fell under an exception to the hearsay rule as a statement made for medical diagnosis or treatment. See Tex. R. Evid. 803(4). Bledsoe raised no further objection to Sullivan’s testimony.

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Eric Bledsoe v. State, 479 S.W.3d 491, 2015 WL 6687491 (Tex. Ct. App. 2015).

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