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Click here for the full text of this decision FACTS:According to Christy McCoy, the mother of 3-year-old Jane, Jane came back from a visit to her grandmother’s and step-grandfather’s house on Nov. 2, 2000, complaining that her “booty” tickled. Jane later asked her mother if spiders “ever get inside your booty,” and said a spider had bit her in her private area. When McCoy asked who had the spider, Jane replied that “Pawpaw” — her step-grandfather, Walter Mosley Jr. — did. McCoy examined Jane and found her private area was red and irritated. Jane added that the spider “just crawled in my belly and crawled out.” McCoy took Jane to the hospital, where Jane’s injuries were found to be consistent with sexual abuse. McCoy took Jane to a children’s hospital, too, for a more thorough examination that resulted in the same conclusion. Mosley was charged with aggravated sexual assault on Jane. Before trial, Mosley moved to have the trial court judge, Judge Bill Peek, recuse himself. Mosley said Peek would be biased because Peek had closed down Mosley’s bail bond business once and was still listed as a witness in that case. Judge Paul Banner heard the motion and denied it. Mosley then hired Peek’s son as his attorney, so Peek voluntarily recused himself, and Judge Leon Pesek was assigned to the case. On the first day of trial, Mosley filed a motion for continuance, saying he couldn’t secure his expert witness’ presence. Pesek met with Peek, the attorneys for the state and Mosley to discuss what options were available instead of continuing the case. In a written order, Pesek admitted taking Peek’s comments under advisement, and Pesek eventually denied the motion. At trial, McCoy testified to the above facts. She also added that before the Nov. 2 incident, she had noticed strange behavior in Jane: nightmares, complaints about her private area hurting and itching, and that she would occasionally “mess with herself and then smell her fingers and . . . laugh about it.” She said Jane stopped behaving this way after she stopped going to Mosley’s house. McCoy also stated, over Mosley’s objection, that before she took Jane to the hospital on Nov. 2, she called her mother to tell her what Jane had said. McCoy stated her mother responded, “Well, I can’t watch them all the time.” Mosley argued the statement was hearsay, but the state said the statement was not being offered to prove the truth of the matter asserted; it was being offered to show McCoy’s mother’s (Mosley’s wife) state of mind. Jane testified at trial, too. She was 5-years-old at the time, and using anatomically-correct dolls, showed how her Pawpaw had touched her “booty” with his hand. She said he hurt her, and that no one else had ever touched her in that way. She echoed her mother’s testimony and said no one told her to say Pawpaw touched her “booty.” When she described the sensation of Mosley’s action, she said Pawpaw had hurt her on the outside of her booty. Several physicians testified for the state. All said the tears to Jane’s vaginal area were consistent with sexual abuse. One doctor said that, given Jane’s size and the degree of tearing, it was very unlikely the injuries were self-inflicted. A psychologist testified that victims of sexual abuse will often have nightmares and will act out sexually, such as by touching herself. Mosley was convicted and sentenced to 26 years in prison. Mosley filed a motion for new trial, based on his argument that Peek’s advice on the motion for continuance was improper. He also moved to recuse Pesek from hearing the motion. Judge Lanny Ramsay was assigned to hear the recusal motion, and Ramsay denied it. Pesek denied the motion for new trial. Mosley now appeals, raising multiple issues, with multiple sub-parts. HOLDING:Affirmed. Mosley first contests the legal sufficiency of the evidence. He says there was no evidence of penetration; the state says there is evidence Mosley penetrated Jane’s sexual organ with his finger. The court notes that Jane’s testimony, even if somewhat inconsistent, does not render it insufficient since there is no requirement that a child victim be able to testify to penetration. Penetration can be proven by circumstantial evidence. Repeating the evidence from McCoy, the physicians, and Jane’s inconsistent testimony, the court concludes that there was legally sufficient evidence to establish that Mosley penetrated Jane’s sexual organ. Mosley also challenges the factual sufficiency, claiming the evidence does not show that Jane’s injuries occurred on Nov. 2. Mosley’s expert witness pointed out that Jane’s injuries could be an anatomical variation, or the result of a straddle incident. McCoy admitted that Jane was injured on a four-wheeler and a dirt bike prior to the Nov. 2 incident. The expert did admit, however, that the injuries could also be consistent with sexual abuse and digital penetration. The court rules that even if the evidence did not conclusively establish that the offense occurred on Nov. 2, the law is settled that when a charging instrument alleges an offense occurred “on or about” a certain date — which was the case here — the state is not required to prove that the offense occurred on the specific date alleged, but only that it occurred before the presentment of the charging instrument and within the limitations period. Also in support of Mosley’s argument that the evidence is factually insufficient is what he calls McCoy’s “loaded question” to Jane about who had the spider. The court finds Mosley is overstating the significance of the question, noting that Jane had forgotten about the spider story at trial, and what she did remember is that her Pawpaw touched her booty, which she said several times. Mosley argues on appeal that he was denied effective assistance of counsel. He points to five incidents, saying any one of them, or all combined, were proof of ineffective assistance. The first was his attorney’s failure to object when the state asked the trial court to take judicial notice of the “re-indictment.” The trial court explained to the jury that the first indictment had a technical defect, and the trial was proceeding on a second, corrected indictment. In the absence of anything in the record to explain why the attorney did not object, the court does not find the failure to object to be unreasonable. The second incident was the attorney’s failure to object to testimony Mosley says was improperly characterized as evidence of actual penetration. While acknowledging that there may have been a mischaracterization, the record is devoid of evidence that the attorney’s action was not reasonable. In the third incident, Mosley claims his attorney elicited damaging testimony from Jane on cross-examination. Specifically, when Jane said her Pawpaw had touched her “hiney,” the attorney asked for clarification, and Jane corrected herself by saying, “I mean booty.” The court points out there was plenty of additional evidence tying Mosley to Jane’s injuries, and it was reasonable for the counsel to pursue a line of questioning about Jane’s injuries in light of the affection she showed for Mosley earlier in her testimony. The fourth incident was that the attorney allowed the one physician to testify that Jane’s injuries could not have been self-inflicted. It was not unreasonable for defense counsel to explore the possibility of alternative causes for Jane’s injuries, the court finds. To effectively raise the self-infliction defense with the jury, it would have to be established that it was at least possible. The fifth incident was the attorney’s failure to address the “loaded question” problem, but in light of the court’s earlier discussion on this point, it was not unreasonable to reject this approach, since Jane’s statements were otherwise consistent. The court then rules that the cumulative effect of these incidents did not render Mosley’s trial counsel ineffective, either. The court agrees with Mosley’s contention on appeal that McCoy’s testimony about what her mother said was hearsay. The statement was indeed offered to imply that McCoy’s mother knew that Mosley and Jane were alone together and that she knew Jane was being sexually assaulted. Nonetheless, based on the additional overwhelming evidence of guilt, the error was harmless. The court next addresses the propriety of Peek’s “advice” to Pesek on whether to grant the motion for continuance. Texas Rule of Civil Procedure 18a requires a judge not to make further orders or take further action, except for good cause, once he has recused himself. The court holds that Peek did not run afoul of this rule. While it is not clear exactly what Peek advised, it is clear that he did not order the denial of the motion. It is also clear that Pesek did not construe Peek’s advice as an order. The court adds that the parties were present, and that neither objected. Finally, the court considers whether Pesek should have been recused from hearing the motion for new trial. The court looks at it in terms of whether Pesek should have been recused for conferring with Peek on the motion for continuance, which formed the basis of the motion for new trial. The court again points out that the meeting with Peek was not ex parte, the parties were included, and the issue they discussed was an administrative one, not one related to the merits. The court concludes that a reasonable member of the public at large, knowing all the facts concerning Pesek’s conduct, would not have a reasonable doubt he was actually impartial in his consideration of Mosley’s motion for new trial. Nonetheless, the court also examines the decision under a harm analysis, applying the three-part test from Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988): 1. the risk of injustice to the parties in the particular case; 2. the risk that denial of relief will produce injustice in other cases; and 3. the risk of undermining the public’s confidence in the judicial process. The court finds the risk in all three categories was slight. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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