Mark Ray Smith v. State

• Court: Court of Appeals of Texas
• Decided: May 31, 2005
• Docket: 08-03-00384-CR
• Status: Published

Opinion

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

MARK RAY SMITH,                                         )                  No. 08-03-00384-CR

                                    Appellant,                        )                             Appeal from

v.                                                                          )                  385th District Court

THE STATE OF TEXAS,                                   )                  of Midland County, Texas

                                    Appellee.                          )                  (TC# CR28264)

O P I N I O N

            Mark Ray Smith appeals his conviction of three counts of aggravated sexual assault of a child. A jury found Appellant guilty and assessed his punishment at imprisonment for twenty-five years on each count. The trial court determined that the sentences in Counts I, II, and III would run consecutively. We affirm.

FACTUAL SUMMARY

            Jennifer George and her daughters from a prior marriage, five-year-old E.G. and two-year-old H.G., began living with George’s boyfriend, Appellant, in October 1999. In the summer of 2002, the unemployed couple considered moving to Tennessee, but decided instead to live with George’s mother, Patty Edens, in Midland. Edens paid the expenses for a few months, but in October, she demanded that Appellant get a job or move out. Appellant did not get a job and moved out that same month. In December 2002, E.G. complained to Edens that her “tee-tee” hurt, and Edens asked whether anyone had been bothering her. E.G. said that Appellant had been “bothering” her on her “tee-tee.” When pressed for details, E.G. told Edens that Appellant had showered with her and had touched her private parts. Appellant had also gotten in the bed with her and rubbed her “tee-tee” with his private parts. Appellant “hit” E.G.’s “tee-tee” with his private parts and it hurt. E.G. saw Appellant “pee white stuff” into a wash cloth and he made her shower afterwards. E.G. told George what Appellant had been doing to her, but George did nothing about it. Edens called Child Protective Services and the Midland Police Department the following morning. She took the child to the Child Advocacy Center where she was interviewed by Jo Ann Sarabia on December 16, 2002. E.G. was also seen by a sexual assault examiner at Midland Memorial Hospital.

            Jo Ann Sarabia is a forensic interviewer employed by the Midland Rape Crisis and Children’s Advocacy Center. Sarabia is trained to interview children in a non-leading manner. E.G. told Sarabia during the interview that Appellant had touched her “private” and had rubbed it with his hand. Appellant also licked her “private” with his tongue. Appellant threatened to beat E.G. with a ping pong paddle if she told anyone.

            Donna Doyle is a charge nurse at Midland Memorial Hospital. She is also a certified sexual assault nurse examiner. On December 26, 2002, Doyle performed a sexual assault examination of E.G. at the hospital. A sexual assault examination consists of three parts: (1) taking a medical history from the patient; (2) a head-to-toe examination of the patient; and (3) a detailed genital examination. E.G. reported to Doyle that Appellant began touching her when she was six years old. He showered with her and touched the “front” and “back” of her “private part” with his hand. Appellant would also touch her private part in bed. Doyle did not observe any injuries to E.G.’s body surfaces in the head-to toe examination.

            Doyle described for the jury the process of performing the genital exam. To conduct the detailed genital examination, Doyle utilizes a colposcope, which is a camera mounted on a microscope. The colposcope permits Doyle to magnify the tissues she is observing by 7.5, 15, and 30 times what the naked eye can see and to take pictures of what she observes during the exam. To assist the jury, Doyle also drew the anatomy she would observe in a female patient, including the hymen. The hymen is a collar of tissue on the outside of the vagina. Doyle explained to the jury that, contrary to the “old wives’ tale,” the hymen does not actually cover the vagina. In infancy, the hymen may be white and fluffy because the infant was exposed to estrogen in her mother’s womb, but by age three, the hymen no longer has this appearance. Doyle explained, through the use of an illustration from the Texas Evidence Collection Manual (State’s Exhibit 18), the appearance of the five common, normal hymenal variations in prepubertal girls: punctate, annular, denticular, crescent, and cuff-like. If something penetrates the hymen, the hymen can tear which will cause a notch or scar to form. Penetration of the hymen can also cause it to be worn away and thinned.

            Doyle did not observe any trauma to the exterior genitalia during her examination, but she did observe changes to E.G.’s hymen. Using photographs taken during the sexual assault examination with the aid of the colposcope, Doyle showed the jury that E.G. has what is described in State’s Exhibit 18 as a crescent hymen. Doyle expected to find that the edge of the hymen appeared the same all of the way around, but she instead observed a thinning of the hymen from 1 o’clock to 4 o’clock and a pronounced thinning from 8 o’clock to 11 o’clock. This thinning indicated to Doyle that penetration had occurred on more than one occasion. Doyle additionally found a notch on the anus indicating that it also had been penetrated. In Doyle’s opinion, a sexual assault had occurred.

            E.G. testified that Appellant touched her private with his private, his hand, and his tongue. The prosecutor presented to E.G. a drawing of a naked girl, State’s Exhibit 10, and asked her to circle the areas she refers to as her private and her bottom. The areas circled by E.G. depicts the female genitalia and the anus. She also viewed a drawing of a naked boy and when asked to indicate what she meant by his private, drew a circle around the penis. E.G. described in detail for the jury how Appellant assaulted her in the shower by rubbing her private with his. He showered with her “almost every day.” Appellant also forced E.G. to get on the bed where he put a wash cloth beneath her bottom. He rubbed lotion on her private and then put his private in hers and went up and down. He would ask her to flip over and he would do it again. A “white goo” came out of Appellant’s private onto E.G.’s private and onto the wash cloth. After Appellant was finished, he would wash off the wash cloth and wipe E.G.’s private part. On some occasions, Appellant also licked E.G.’s private with his tongue. Appellant threatened to kill E.G. if she told anyone. She was also afraid that he would beat her with a paddle, his hand, or his belt.

            The indictment alleged that Appellant intentionally and knowingly:

•          penetrated E.G.’s sexual organ with his sexual organ (Count I);

•          penetrated E.G.’s sexual organ with his finger (Count II) and

•          caused E.G.’s sexual organ to contact his mouth (Count III).

            The jury found Appellant guilty of each count and assessed punishment at imprisonment for a term of twenty-five years on each count. The trial court determined that the sentences in Counts I, II, and III would run consecutively. Appellant filed a notice of appeal in the instant case and in the revocation proceeding heard by the trial court in conjunction with the trial.

CRUEL AND UNUSUAL PUNISHMENT

            In Point of Error One, Appellant asserts that his cumulated sentences constitute cruel and unusual punishment under both the Eighth Amendment to the United States Constitution and Article I, section 13 of the Texas Constitution because his punishment is grossly disproportionate to the crimes for which he was convicted. A timely objection or motion stating the specific grounds for the ruling desired is required to preserve a complaint for appellate review. Tex.R.App.P. 33.1(a). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived by failure to assert the right by a timely objection or motion. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.--Dallas 2003, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.--Texarkana 2002, no pet.). Several intermediate appellate courts have specifically held in published decisions that a disproportionate sentence complaint is a matter which must be preserved by a timely objection or motion raised in the trial court. See Buster v. State, 144 S.W.3d 71, 81 (Tex.App.--Tyler 2004, no pet.); Hookie v. State, 136 S.W.3d 671, 679-80 (Tex.App.--Texarkana 2004, no pet.); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.--Dallas 2003, no pet.); Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.--Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.--Texarkana 1999, no pet.). We agree that a disproportionate sentence issue is subject to procedural default. When the State made an oral motion for the three sentences to be stacked, Appellant’s counsel made a well-reasoned argument that the cases should be run concurrently but he did not object that stacking the sentences would constitute cruel and unusual punishment. Because Appellant did not object on Eighth Amendment grounds when the trial court ordered that the sentences be served consecutively, we must conclude that the issue is not preserved for our review. See Rhoades, 934 S.W.2d at 120. Point of Error One is overruled.

HEARSAY

            In Point of Error Two, Appellant contends that the trial court abused its discretion by overruling his hearsay exception and admitting Nurse Doyle’s testimony regarding E.G.’s statements to her. He alleges that the hearsay exception does not apply because the State did not establish that E.G. was aware that the statements would be used for medical diagnosis or treatment or that she understood the importance of being truthful in her statements made to Doyle.

            Rule 803(4) of the Texas Rules of Evidence is an exception to the hearsay rule for statements “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Tex.R.Evid. 803(4). This exception is based on the assumption that the patient understands the importance of being truthful with the medical personnel involved to receive an accurate diagnosis and treatment. Powell v. State, 88 S.W.3d 794 (Tex.App.--El Paso 2002, no pet.); Beheler v. State, 3 S.W.3d 182, 188 (Tex.App.--Fort Worth 1999, pet. ref’d); Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.--Austin 1991, pet. ref’d). Where very young children are responsible for relating information to their healthcare provider, the presumption of reliability that forms the basis for this exception may break down if they do not understand the importance of being truthful. Beheler, 3 S.W.3d at 188; Fleming, 819 S.W.2d at 247. Nevertheless, there is no requirement that a witness expressly state that the hearsay declarant recognized the need to be truthful in her statements for the medical treatment exception to apply. Beheler, 3 S.W.3d at 188. Instead, the reviewing court must look to the record to see if it supports a conclusion that the child understood why she needed to be honest when speaking to the caregiver. Beheler, 3 S.W.3d at 188-89; see Molina v. State, 971 S.W.2d 676, 684 (Tex.App.--Houston [14 th Dist.] 1998, pet. ref’d); Fleming, 819 S.W.2d at 247. Likewise, it is unnecessary for the witness to use the magic words “diagnosis” or “treatment.” Beheler, 3 S.W.3d at 189. It is sufficient that the evidence reflects that the statements were made for the purpose of medical diagnosis and treatment. Beheler, 3 S.W.3d at 189.

            Doyle testified that she obtains a medical history from the patient because it provides a guide for what she needs to look for during the examination. Thus, the record supports a conclusion by the trial court that E.G.’s statements regarding the sexual abuse were made for the purpose of medical diagnosis and treatment.

            We next consider whether the trial court abused its discretion by concluding that E.G. understood the necessity for being truthful. In Beheler, the sexual assault nurse examiner did not specifically inquire whether the child understood the importance of being truthful in her statements. See Beheler, 3 S.W.3d at 189. However, the child told the nurse that she knew why she was there. Id. The Fort Worth Court of Appeals found that this evidence supported a finding that the child understood the need to tell the truth. Id. The instant case is indistinguishable. While there is no evidence that Doyle specifically inquired whether E.G. understood the need to be truthful, she asked E.G. if she understood why she was at the hospital. E.G. related that it was because Appellant had touched her. Without any prompting by Doyle or leading questions, E.G. went on to provide details regarding the sexual abuse, such as the nature of the abuse and over what period of time it took place. Finding no abuse of discretion in the admission of this evidence, we overrule Point of Error Two.

EXPERT TESTIMONY

            In Point of Error Three, Appellant alleges that the trial court abused its discretion by permitting Nurse Doyle to state her expert opinion that a sexual assault had occurred. Appellant’s argument contains three parts: (1) Doyle’s expert opinion is not based on a body of scientific or specialized knowledge; (2) assuming such a body of knowledge exists, Doyle is not qualified to state an expert opinion that a sexual assault had occurred; and (3) Doyle’s expert opinion invaded the province of the jury by stating a legal conclusion that a sexual assault had occurred.

            Prior to trial, the State designated Doyle as an expert witness. At Appellant’s request during trial, the court conducted a Daubert-Kelly hearing to determine Doyle’s qualifications and the reliability of her opinion. Doyle is a registered nurse certified in pediatric nursing and is employed on a full-time basis at Midland Memorial Hospital. She is also a sexual assault nurse examiner (or SANE nurse), and she performs these examinations on a contract basis for Midland Rape Crisis. A sexual assault nurse examiner is a registered nurse who is specially trained to provide comprehensive care to the sexual assault patient and perform a detailed head-to-toe and genital exam looking for trauma. Doyle’s profession as a SANE nurse is based on a body of learning or knowledge which has been developed through observation and experience in the subject matter. There are articles, books, and literature in this specialized field of learning by which a person can acquire specialized knowledge of the field. Doyle had with her during the hearing the manuals on which her training is based and which she utilizes in her practice as a sexual assault nurse examiner. The principles of this body of learning or specialized knowledge are generally accepted as valid by members of Doyle’s profession and the medical profession and can be applied to determine issues or questions related to the field.

            In Texas, sexual assault nurse examiners are certified through the office of the Texas Attorney General. Doyle obtained her training through the Attorney General’s Office. In order to be certified as a sexual assault nurse examiner, a nurse must first be a registered nurse. Doyle was required to attend fifty-six hours of classroom training, twenty-four hours of adult female genital speculum exams in an OB/GYN office, and twenty hours of well-child checkups in a pediatrician’s office. Following that, Doyle underwent sixteen hours of courtroom observation. She was next required to perform six adult sexual assault exams with a preceptor and ten pediatric exams with a preceptor. Since her certification as a pediatric and adult sexual assault nurse examiner, Doyle had performed 115 sexual assault examinations (46 adult and 69 pediatric). In conducting these exams, she used and applied the principles and knowledge of her field of expertise. As a result of her training as a sexual assault nurse and based on the sexual assault exam, Doyle is able to determine whether an allegation of abuse is consistent with the physical findings. Further, she is able to examine the female genitalia, including the hymen, and determine whether penetration has occurred based on changes in the appearance of the hymen. In response to questioning by Appellant, Doyle testified that she is trained to recognize a “normal” hymen and that publications accepted by her profession depict the appearance of a normal hymen.

            At the conclusion of the hearing, Appellant objected that Doyle’s opinion was not sufficiently reliable because the State had not shown that a valid and relevant theory exists in the scientific community or that a body of knowledge exists regarding what constitutes a “normal” hymen. The trial court overruled the objections and permitted Doyle to testify as an expert. Doyle then testified before the jury describing not only her qualifications but also her examination of E.G. and her findings. Her testimony included the presentation of an illustration depicting common, normal hymenal variations in prepubertal girls. Based on her observations and examination of E.G.’s hymen and anus, Doyle stated her opinion that penetration had occurred. The following exchange then took place between the prosecutor and Nurse Doyle:

[Prosecutor]: Did you reach an opinion, after looking at [E.G.’s] sexual organs?

[Doyle]: Yes.

[Prosecutor]: Okay. And what was your opinion?

[Defense counsel]: And we respectfully object under Texas Rules of Evidence 702, 704 and 705. Again it invades the province of the jury. We respectfully object. No proper predicate has been laid under our Rules of Evidence, your Honor.

[The Court]: Overrule the objection.

[Prosecutor]: What was your opinion?

[Doyle]: Yes -- I’m sorry. What was the question?

[Doyle]: It was that a sexual assault had occurred. May I add, in The State of Texas, any injury inside the labia majora is considered sexual assault.

[Prosecutor]: Okay. Is any penetration inside the labia majora considered penetration?

Applicable Law and

the Standard of Review

            In a case where the expert opinion is based on a scientific theory, and the scientific theory or technique has not been determined to be reliable, the admission of that novel scientific evidence is governed by Texas Rule of Criminal Evidence 702 and the test stated in Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992). See Emerson v. State, 880 S.W.2d 759, 763 (Tex.Crim.App. 1994). Rule 702 provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex.R.Evid. 702. The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App. 1995). The proponent of scientific or technical evidence has the burden of demonstrating by clear and convincing evidence that the evidence is both reliable and relevant. Kelly, 824 S.W.2d at 573. The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court’s discretion. Wyatt, 23 S.W.3d at 27. Absent a clear abuse of that discretion, the trial court’s decision to admit or exclude expert testimony will not be disturbed. Id.

            The threshold determination in an inquiry into the admissibility of expert testimony under Rule 702 is whether such testimony is helpful to the trier of fact. Emerson, 880 S.W.2d at 765. For such testimony to be helpful, the basis of the testimony must be reliable. Id., citing Kelly, 824 S.W.2d at 572. Three criteria must be satisfied for scientific evidence to be considered reliable: (1) the underlying theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must be properly applied on the occasion in question. Kelly, 824 S.W.2d at 573. In making the reliability determination, courts may consider the following non-exclusive list of factors: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community if such a community can be ascertained; (2) the qualifications of the testifying expert; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Id.

            Doyle’s testimony established that it is accepted by the medical community that a pre-pubertal girl’s hymen will have what is considered a normal appearance and that penetration of the hymen causes distinct changes to the appearance of the hymen which can be observed. The medical community also accepts the technique employed by Doyle to examine the hymen. Doyle described literature which supports this theory and the technique employed by Doyle in this case. The evidence also showed that Doyle possesses considerable experience and skill in performing sexual assault examinations and she properly performed the examination in this case. Thus, the State established that Doyle’s expert opinion regarding the occurrence of penetration based on the appearance of the hymen is reliable. Cf. Gregory v. State, 56 S.W.3d 164, 179 (Tex.App.--Houston [14th Dist.] 2001, pet. dism’d)(holding nurse was qualified to testify as expert: nurse had completed one-year course dedicated to sexual assault cases, studied medical literature on genital findings in sexually abused children, performed sexual assault examinations for more than four years, and completed over 650 examinations, approximately 80 percent of which were performed on children under age twelve; nurse outlined procedures she performs during examination of suspected sexual assault victim, explaining in detail discrete steps in process, including taking brief history from patient for diagnosis and treatment, conducting complete physical examination, performing detailed genital examination with child in lithotomy position, and conducting examination of hymenal rim using colposcope, which magnifies tissues and enables examiner to see abrasions, tears, or abnormalities). That, however, is not the focus of Appellant’s complaint on appeal. Appellant instead argues that Doyle exceeded her expertise and invaded the province of the jury by offering an expert opinion on the ultimate issue to be decided by the jury, namely, whether a sexual assault had occurred.

            As acknowledged by Appellant, Rule 704 provides that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Tex.R.Evid. 704. Thus, Doyle’s testimony that a sexual assault occurred is not inadmissible simply because it embraces an ultimate issue to be decided by the jury. The State, however, did not establish in the hearing held outside of the jury’s presence that Doyle’s specialized learning or knowledge included an understanding of the elements of sexual assault such that she would be qualified to render such an opinion. Consequently, the opinion is not “otherwise admissible” as required by Rule 704. The trial court abused its discretion in admitting this portion of Doyle’s testimony over Appellant’s objection.

Harm Analysis

            The erroneous admission of expert testimony is non-constitutional error. Accordingly, we apply the harm analysis standard found in Tex.R.App.P. 44.2(b). See Sexton v. State, 93 S.W.3d 96, 101 (Tex.Crim.App. 2002). Under this standard, the error must be disregarded unless Appellant’s substantial rights are affected. Tex.R.App.P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence 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. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should 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. Motilla, 78 S.W.3d at 355. We may also consider the jury instructions, the State’s theory and any defensive theories, closing arguments, and even voir dire, if applicable. Id., at 355-56. We may also consider whether the State emphasized the error. Id., at 356.

            One of the primary issues for the jury was whether it found E.G. credible. E.G. consistently stated the nature of the abuse in her discussions with various adults prior to trial and in her testimony before the jury. She told her caregivers and the jury that Appellant put his “private” in her “private” on numerous occasions. E.G. also provided detailed descriptions of the sexual abuse in age-appropriate language. The trial court properly admitted Doyle’s expert testimony that the changes to E.G.’s hymen indicated repeated penetration. In closing argument, the prosecutor emphasized the properly admitted aspects of Doyle’s testimony, including the physical evidence, but she did not mention Doyle’s opinion that a sexual assault had occurred. Under these circumstances, we find that the error had little or no influence on the jury’s verdict because there is substantial evidence supporting that verdict and the State did not emphasize the improperly admitted opinion testimony. Point of Error Three is overruled.

LEGAL SUFFICIENCY

            In his final point of error, Appellant challenges the legal sufficiency of the evidence supporting the finding of guilt as to Count III which alleged that Appellant intentionally and knowing caused E.G.’s female sexual organ to contact his mouth. Appellant concedes that there is evidence showing that his tongue contacted E.G.’s female sexual organ but there is no evidence of contact by his mouth.

Standard of Review

            In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

Elements of Aggravated Sexual Assault and

Review of the Evidence

            A person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child to contact the mouth of another person, including the actor. Tex.Penal Code Ann. § 22.021(a)(1)(B)(iii)(Vernon Supp. 2004-05). Count III of the indictment and the application paragraph of the court’s charge tracked the language of the statute. Appellant argues that the evidence showing his tongue contacted E.G.’s sexual organ is insufficient to prove contact by his mouth.

            The Dallas Court of Appeals addressed the same issue and determined that the Legislature intended the word “mouth” to include its parts, such as the teeth and tongue. See Montoya v. State, 841 S.W.2d 419, 422 (Tex.App.--Dallas 1992), rev’d on other grounds, 906 S.W.2d 528 (Tex.Crim.App. 1995).

The statute does not define mouth and we have not found any case law defining mouth as used in the statute. Both parties cite us to versions of Webster’s Dictionary. A ‘mouth’ is ‘the cavity bounded externally by the lips and internally by the pharynx that encloses in the typical vertebrate the tongue, gums, and teeth.’ Webster’s New Collegiate Dictionary (9th ed. 1985). If we limit mouth to the cavity containing the tongue, gum, and teeth, then we defeat the intent of the statute because a cavity cannot make contact with another object or person as required under the statute. Common sense and common usage leads us to conclude that the legislature intended the word ‘mouth’ to include its parts, such as the teeth and tongue.

Montoya, 841 S.W.2d at 422.

            Following Montoya’s reasoning, the First Court of Appeals has also rejected an argument that the evidence was insufficient prove an offense under the statute since the indictment alleged and the proof showed contact by the defendant’s tongue. Johnson v. State, 882 S.W.2d 39, 41 (Tex.App.--Houston [1st Dist.] 1994, pet. ref’d). We likewise agree that common sense requires that the word “mouth” as used in Section 22.021(a)(1)(B)(iii) must be read to include its parts such as the tongue. Therefore, the evidence showing that Appellant contacted E.G.’s sexual organ with his tongue is legally sufficient to support the jury’s verdict as to Count III. Point of Error Four is overruled. Having overruled all points of error raised on appeal, we affirm the judgment of the trial court.

May 31, 2005                                                             

                                                                                    ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)