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In Hettinger v. State, No. 04-04-00920-CR, 2006 WL 332545, 2006 Tex.App. Lexis 1198 (Tex.App.-San Antonio Feb. 15, 2006, pet. ref'd) (not designated for publication), Hettinger cited Carmell for the proposition that "the court erred in admitting at punishment the uncorroborated testimony of his step-daughter that he repeatedly sexually assaulted her when she was a child."
Summary of this case from York v. StateOpinion
No. 4-04-00920-CR
Delivered and Filed: February 15, 2006. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kerr County, Texas, Trial Court No. A04-56, Honorable Stephen B. Ables, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Billy Eugene Hettinger appeals the judgment convicting him of aggravated sexual assault of A.M., a child, and sentencing him to life imprisonment. We affirm. 1. Hettinger argues the evidence is legally and factually insufficient to prove he penetrated A.M.'s sexual organ with his finger. We disagree. Any penetration that passes within the plane of a female child's sexual organ, no matter how slight, is sufficient. See Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992); Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Crim.App. 1976). A.M. testified she had no way of knowing how far Hettinger's finger penetrated her because she had her back to him when he made her take off her pajama bottoms and panties and bend over to touch her toes while he sat on the toilet and proceeded to touch her sexual organ, separate the opening to her sexual organ, and tell her that was where her "hole was." However, when Hettinger was questioned by investigators if he had touched A.M.'s vaginal area, he told them in his version of events that, while discussing with A.M. on the couch how babies are born, he pushed aside her panties, spread her "lips," and, when showing her "the hole" "that the baby has to come out of," "stuck [his] finger there" and, with his fingertip, penetrated "inside of there," but "[n]ot very "far." Contrary to Hettinger's assertions, this evidence is legally and factually sufficient to support his conviction. See Vodochodsky v. State, 158 S.W.3d 502, 509-10 (Tex.Crim.App. 2005) (articulating standards of review for legal and factual sufficiency analyses). 2. Hettinger next argues the court erred in admitting at punishment the uncorroborated testimony of his step-daughter that he repeatedly sexually assaulted her when she was a child. As support, Hettinger cites Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d. 577 (2000). However, Carmell is inapposite. Unlike the court in Carmell, we are not concerned with whether a change in the law has lowered the quantum of evidence necessary to support a conviction for aggravated sexual assault. See Carmell, 529 U.S. at 518-20. Rather, the issue Hettinger raises is the admissibility of extraneous offense evidence under article 37.07 of the Code of Criminal Procedure. Put simply, "unlike article 38.07, the statute at issue in Carmell, article [37.07] is not a sufficiency of the evidence rule" since "it pertains to what kind of evidence may be introduced at law," not what type of evidence is "required for conviction of the offense [charged]." McCullouch v. State, 39 S.W.3d 678, 684 (Tex.App.-Beaumont 2001, pet. ref'd) (holding Carmell is inapplicable to the admissibility of evidence under article 38.37 because article 38.37 is concerned with the admissibility of evidence, rather than with its sufficiency); see also Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999) ("[i]n addition to the Rules of Evidence, Article 37.07 Section 3(a) governs the admissibility of evidence during the punishment stage"). Therefore, the requirements of article 38.07 and Carmell are irrelevant to the admission of extraneous offense evidence offered at punishment, the admissibility of which is governed by article 37.07. See Williams v. State, 653 S.W.2d 517, 519 (Tex.App.-Beaumont 1983, no writ); see also Reyes v. State, No. 07-01-00427-CR, 2002 WL 31174934 at *1-2 (Tex.App.-Amarillo Oct. 1, 2002, pet. ref'd) (not designated for publication). The trial court's judgment is affirmed.