Ibn Khedru 'Ankh v. Tdcj Id

Opinion

Ibn Khedru 'Ankh v. TDCJ ID

IN THE

TENTH COURT OF APPEALS

No. 10-99-367-CV

     IBN KHEDRU ‘ANKH,

                                                                         Appellant

     v.

     TDCJ ID,

                                                                         Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 99-32688

                                                                                                                                                                                                                             

MEMORANDUM OPINION

                                                                                                                    

      Pugh, an inmate in the Texas Department of Criminal Justice - Institutional Division, brought suit against the Department, several state employees, and Judge Philip Zeigler for alleged civil rights violations. The court dismissed Judge Zeigler as a defendant, but the suit against the remaining defendants is still pending. Pugh attempts to appeal from the court’s partial dismissal order. Pugh is also attempting appeal of a motion for recusal which was filed in the trial court and denied by the sitting judge.

      Except for the types of appealable interlocutory orders enumerated in section 51.014 of the Texas Civil Practices and Remedies Code, the appellate jurisdiction of this court extends only to final judgments. City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993); see also Tex. Civ. Prac. & Rem. Code § 51.014 (Vernon 1999). In order to be “final,” a judgment must dispose of all parties to the case and all issues in dispute. North East Independent School Dist. v. Aldridge, 400 S.W2d 893, 895 (Tex. 1966). Neither of the orders complained of in this appeal are final. This Court has no jurisdiction over non-appealable interlocutory orders. See Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545, 547 (Tex. 1991). This appeal is dismissed for want of jurisdiction.

                                                                               PER CURIAM

Before Justice Vance,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Dismissed for want of jurisdiction

Opinion delivered and filed March 1, 2000

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ee Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2010).  The indictment did not allege penetration, nor did the charge’s application paragraph.  C.K. testified that when she was six years old, she and her mother lived with her mom’s best friend Heather and Heather’s two daughters, as well as Heather’s mother Rhonda and Rhonda’s husband Roberts.  When asked what she calls “the place where you pee-pee from,” C.K. stated that she calls it her “tu-tu.”  C.K. testified that while in the shed on Roberts’s property, he “put his tongue on my tu-tu.”  C.K. stated that no one else has ever done this to her and she was not told to make these things up.

A child victim’s testimony alone is sufficient to support a conviction for aggravated sexual assault.  Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d).  Viewing all the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support Roberts’s conviction in cause number 10-10-00075-CR.

10-10-00076-CR

To obtain a conviction for aggravated sexual assault based on the allegations in the indictment in cause number 10-10-00076-CR, the State was required to prove beyond a reasonable doubt that Roberts intentionally or knowingly caused the penetration of the sexual organ of T.B., a child under the age of fourteen, by his finger.  See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B).  The State may prove penetration by circumstantial evidence.  Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Murphy v. State, 4 S.W.3d 926, 929 (Tex. App.—Waco 1999, pet. ref’d).  The victim need not testify as to penetration.  Villalon, 791 S.W.2d at 133; Murphy, 4 S.W.3d at 929.  Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt.  Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974); Murphy, 4 S.W.3d at 929.  In Vernon v. State, the Court of Criminal Appeals determined what constitutes a “penetration” for purposes of aggravated sexual assault, stating:

Thus, in common parlance, mere contact with the outside of an object does not amount to penetration of it.  But 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.  Consequently, 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.

 

841 S.W.2d 407, 409 (Tex. Crim. App. 1992); see Murphy, 4 S.W.3d at 929.

T.B. testified that when she was seven years old, C.K. was a friend who lived on the same street that she did and whom she would visit at her house.  When asked what she calls “the place on your body where you pee-pee from,” T.B. testified that she calls it her “pee-pee.”  One night when she spent the night at Roberts’s house, Roberts touched her pee-pee with his hand both on top of and underneath her clothes.  When asked what he did with his hand underneath her clothes, she replied that he rubbed her pee-pee.  When further questioned whether she remembered if his hand went inside her pee-pee, she replied that she did not remember.

Dr. Ann Sims, the medical director for the Advocacy Center for Crime Victims and Children in Waco, also testified; she had examined both T.B. and C.K.  Dr. Sims stated that when she asked T.B. why she had come to the Advocacy Center, T.B. hid her head in her legs and said that Roberts had done something to her and C.K.  Dr. Sims stated that T.B. told her

[h]e had touched their private area with his weaner [sic] and his fingers.  She went on to say that it didn’t go inside her private area, but it hurt, and did not cause her to bleed.  She said that he also pulled her pants down and put his weaner [sic] on her bottom or her butt.

When later asked why T.B. would feel some type of pain in her vaginal area, Dr. Sims stated that the “most likely thing to cause pain is touching that hymen” and that, for something to touch the hymen, it would have to penetrate the outer and inner lips of the female sexual organ to get to the hymen.  Dr. Sims testified that the results of T.B.’s physical exam were normal, which she expected, because, unless a child is seen within the first twenty-four hours or unless the child has a history of bleeding, the chance of the child having anything but a normal exam is less than ten percent.

Roberts argues that the evidence is legally insufficient to support his conviction because T.B. never stated that his actions even reached the point of “slight penetration.”  However, T.B. did not need to directly testify as to the penetration for the State to prove the element.  See Villalon, 791 S.W.2d at 133.  In this case, Dr. Sims’s testimony that T.B. told her that Roberts touched her private area with his fingers and that it hurt, in addition to Dr. Sims’s testimony that T.B.’s pain was most likely caused by the touching of the hymen, which would require the penetration of the outer and inner lips of the female sexual organ, is sufficient to embrace the essential element of penetration.  See Mosley v. State, 141 S.W.3d 816, 823 (Tex. App.—Texarkana 2004, pet. ref’d) (holding other evidence sufficient to establish penetration even though victim testified that defendant only touched her on outside of her clothes and that it only hurt on outside of her “booty”).  Viewing all the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support Roberts’s conviction in cause number 10-10-00076-CR.

10-10-00080-CR

Lastly, contrary to Roberts’s contention in his brief, to obtain a conviction for aggravated sexual assault based on the allegations in the indictment in cause number 10-10-00080-CR, the State was required to prove beyond a reasonable doubt that Roberts intentionally or knowingly caused the sexual organ of T.B., a child under the age of fourteen, to contact his sexual organ.  See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B).  The indictment did not allege penetration, nor did the charge’s application paragraph.  T.B. stated that while at Roberts’s house, Roberts’s pee-pee touched her pee-pee.  T.B. testified that she was not told to make these things up.  

Again, a child victim’s testimony alone is sufficient to support a conviction for aggravated sexual assault.  Tex. Code Crim. Proc. Ann. art. 38.07(a); Tear, 74 S.W.3d at 560.  Viewing all the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support Roberts’s conviction in cause number 10-10-00080-CR.

Notice of Intent to Consolidate

            In his identical second issues in cause numbers 10-10-00075-CR, 10-10-00076-CR, and 10-10-00080-CR and identical first issues in cause numbers 10-10-00077-CR, 10-10-00078-CR, and 10-10-00079-CR, Roberts argues that the trial court erred in joining the six indictments for a single trial.  Specifically, Roberts contends that the State violated section 3.02(b) of the Penal Code by failing to give the trial court and the defendant written notice of its intent to prosecute multiple indictments in a single criminal action not less than thirty days before trial.  See Tex. Penal Code Ann. § 3.02(b) (Vernon 2003); Fernandez v. State, 814 S.W.2d 417, 419-20 (Tex. App.—Houston [14th Dist.] 1991), aff’d, 832 S.W.2d 600 (Tex. Crim. App. 1992).  However, after Roberts filed his brief in each of these appeals, a supplemental clerk’s record was filed in each cause containing the State’s written notice of intent to prosecute the six indictments in a single trial.  The notice was filed more than thirty days before trial.  Thus, we overrule Roberts’s second issue in cause numbers 10-10-00075-CR, 10-10-00076-CR, and 10-10-00080-CR and his first issue in cause numbers 10-10-00077-CR, 10-10-00078-CR, and 10-10-00079-CR.

            Having overruled all Roberts’s issues in all six appeals, we affirm the trial court’s judgment in each appeal.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed May 4, 2011

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