James Alvin Camp, Jr. v. State ( 2001 )

James Alvin Camp Jr. v. State of Texas

    IN THE

TENTH COURT OF APPEALS

No. 10-99-328-CR

     JAMES ALVIN CAMP, JR.,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # F33542

O P I N I O N

      A jury convicted James Alvin Camp, Jr. of multiple counts of aggravated sexual assault and indecency with a child and a single count of attempted indecency with a child. Camp pleaded true to a single enhancement allegation. The jury assessed his punishment at life for the aggravated sexual assault convictions, ninety-nine years for the indecency with a child convictions, and twenty years for the attempted indecency with a child conviction. Camp contends in three issues that: (1) the court erred in sentencing him under enhanced punishment ranges because the jury did not find the enhancement allegation true and the judgment does not recite a finding on the enhancement allegation; (2) the court abused its discretion by admitting outcry testimony because the State failed to give the required notice; and (3) the evidence is insufficient to sustain the conviction for attempted indecency with a child.

      In his second issue, Camp argues that the court abused its discretion by admitting outcry testimony because the record does not reflect that the State gave the notice required by article 38.072 of the Code of Criminal Procedure.

      Article 38.072, section 2(b) requires the State to give fourteen days’ notice in writing of its intent to introduce outcry testimony. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b)(1) (Vernon Supp. 2001). This notice must inform the defendant of the outcry witness’s name and provide a summary of the statement. Id.

      After Camp filed his appellant’s brief raising this issue, the State filed a motion to supplement the clerk’s record with copies of the original outcry notices. According to the motion, the district clerk apparently lost the original notices. The State attached copies and asked that we “determine what constitutes [sic] accurate copies of the missing documents and order them to be included in the clerk’s record or a supplement.” See Camp v. State, 16 S.W.3d 920, 921 (Tex. App.—Waco 2000, order) (per curiam).

      Because Camp would not stipulate to the authenticity of the tendered copies, we abated the matter to the trial court “to determine whether the documents attached to the State’s motion constitute[d] accurate copies of [the] pleadings filed with the district clerk.” Id.; Tex. R. App. P. 34.5(e). The trial court complied with this directive and found that the copies at issue were accurate. Those copies have been forwarded to this Court in a supplemental clerk’s record.

      The notices identify the outcry witness and provide a written summary of the statements at issue. The State sent these notices to defense counsel approximately two and one-half months before trial. Thus, the State provided the notice required by article 38.072, and Camp’s second issue is without merit.

      Camp claims in his third issue that the evidence is “insufficient” to prove that he committed the offense of attempted indecency with a child. We construe this as a challenge to the legal sufficiency of the evidence to support the conviction. See Brown v. State, 35 S.W.3d 183, 187-88 (Tex. App.—Waco 2000, pet. filed); Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App.—Waco 1997, no pet.).

      In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

      The indictment alleges in pertinent part that Camp committed this offense “by asking the [victim] to lay on a couch next to him, and let him touch her breasts and genitals and by grabbing her hand, which amounted to more than mere preparation that tended but failed to effect the commission of the offense . . . .”

      The victim testified that:

      •    Camp asked her to sit next to him on a couch;

      •    he asked her if she ever let anyone “touch [her] in private places” to which she responded “no”;

      •    he asked her if she “would lay back on the couch and let him touch [her] breasts and [her] private area down there” to which she responded “no” and “started to get up”;

      •    when she stood to walk away, Camp grabbed her by the wrist and asked her to sit down; and

      •    when she said “no” and began to walk away, he grabbed her arm “in an attempt to pull [her] back.”

      Reviewing this evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the conviction. See Hackbarth v. State, 617 S.W.2d 944, 945-46 (Tex. Crim. App. [Panel Op.] 1981); Franklin v. State, 34 Tex. Crim. 203, 213, 29 S.W. 1088, 1090 (1895). Thus, Camp’s third issue is without merit.

      Camp avers in his first issue that the court erred by sentencing him to enhanced punishments without an affirmative jury finding on the enhancement allegation. He also complains of the absence of an affirmative finding on the enhancement allegation in the judgment.

      Camp pleaded true to the enhancement allegation. The State offered in evidence the penitentiary packet reflecting the prior conviction alleged without objection. The court’s punishment charge informed the jury that Camp had pleaded true to the enhancement allegation and instructed the jury to assess his punishment within the ranges provided for a person previously convicted of a felony. The jury assessed his punishment accordingly.

      The judgment contains the following recitals regarding the enhancement allegation:

      PLEA TO ENHANCEMENT PARAGRAPH(S): True

      ENHANCEMENT PARAGRAPH(S):   One

      In a similar case, the Court of Criminal Appeals has held that, upon a defendant’s plea of “true” to an enhancement allegation, “the validity of the enhancement allegation [i]s not in issue” and there is “no need to submit its validity for the jury’s consideration.” Howell v. State, 563 S.W.2d 933, 936 (Tex. Crim. App. [Panel Op.] 1978); accord Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Kenneybrew v. State, 576 S.W.2d 861, 862 (Tex. Crim. App. [Panel Op.] 1979); Vance v. State, 970 S.W.2d 130, 133 (Tex. App.—Dallas 1998, no pet.).

      Camp cites Turk v. State as authority for the proposition that the punishment verdicts must be reversed in the absence of an affirmative finding on the enhancement allegation. 867 S.W.2d 883 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). In Turk, the State alleged two prior felony convictions to enhance the defendant’s punishment to that of an habitual offender. Id. at 887-88 (citing Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2001)). Turk pleaded “true” to one of these allegations and “not true” to the other. The prosecution offered no punishment evidence because a fingerprint expert was unavailable. After a presentence investigation, a different judge proceeded to pronounce Turk’s sentence. This second judge “assumed that the enhancement allegations had been properly presented, and the prosecutor did not attempt to correct his assumption.” The judgment recited that both enhancement allegations were found true. In a “special hearing,” each judge who presided over Turk’s trial testified that he did not make a finding of true on the enhancement allegations.

      Even though the punishment assessed (50 years) would fall within the habitual or enhanced punishment ranges for Turk’s convictions, the court reversed for a new punishment hearing because it could not “assume that the trial court automatically would assess another 50-year punishment.” Id. at 888. We believe Turk is distinguishable however because the defendant in that case pleaded “not true” to one of the enhancement allegations.

      Nonetheless, Camp is correct that the judgment does not recite a finding on the enhancement allegation. Article 37.12 of the Code of Criminal Procedure requires the court to enter “the proper judgment.” Tex. Code Crim. Proc. Ann. art. 37.12 (Vernon 1981); see also Rachuig v. State, 972 S.W.2d 170, 179 (Tex. App.—Waco 1998, pet. ref’d). Such a judgment must accurately reflect the court’s findings on any enhancement allegations. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(7) (Vernon Supp. 2001); Rachuig, 972 S.W.2d at 179; State v. Dickerson, 864 S.W.2d 761, 764 (Tex. App.—Houston [1st Dist.] 1993, no pet.).

      For this reason, we modify that portion of the court’s judgment which recites, “ENHANCEMENT PARAGRAPH(S): One ,” to read, “FINDING ON ENHANCEMENT PARAGRAPH(S): True .” This modification aside, Camp’s first issue is without merit.

      We affirm the judgment as modified.

                                                                         REX D. DAVIS

                                                                         Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed as modified

Opinion delivered and filed August 1, 2001

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