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Click here for the full text of this decision FACTS:David Wayne Glockzin is J.M.’s father. J.M. and her cousin, H.M., stayed with Glockzin on the night of the offense. That night, Glockzin followed J.M. to the apartment’s only bedroom, got in bed with her, pulled down her shorts and underwear, and sexually assaulted her. Glockzin then left the bedroom. J.M. testified that H.M. was in the living room during this time. J.M. told Detective Lonnie Underberg that H.M. was in the bedroom but ran out when Glockzin entered and returned after he left. J.M. testified that Glockzin was drinking. J.M. smelled alcohol and his eyes were red. J.M. concealed these events until, several days later, her sister, R.M., discovered J.M.’s bloody underwear hidden in the closet. R.M. and M.G., J.M.’s mother, confronted J.M., who revealed the offense. A trial court convicted David Wayne Glockzin of aggravated sexual assault (count one) and indecency with a child (count two). The jury sentenced Glockzin to 60 years in prison with a $5,000 fine on count one and 20 years in prison with a $5,000 fine on count two. Glockzin argued that: 1. the evidence against him was factually insufficient; 2. the court’s charge constructively amended the indictment; 3. the jury charge improperly defined “sexual contact”; 4. the court erred by not sua sponte including an extraneous offense instruction in the guilt-innocence charge; 5. the court’s charge commented on the weight of the evidence as to count one; 6. the court’s charge commented on the weight of the evidence as to count two; 7. the court erred by not sua sponte including an extraneous offense instruction in the punishment charge; and 8. Glockzin’s attorney rendered ineffective assistance. HOLDING:Affirmed. Glockzin’s denials of abuse and the absence of physical evidence, the court stated, did not render the evidence factually insufficient. J.M.’s testimony alone was all the jury needed to convict Glockzin, the court stated. The court found that a neutral review of all the evidence did not demonstrate that the proof of guilt is so weak or the conflicting evidence is so strong that the verdict is clearly wrong and manifestly unjust. Thus, the court held that the evidence was factually sufficient to support Glockzin’s conviction for aggravated sexual assault. Moving on to Glockzin’s next issue, the court found that the jury charge limited the jury’s consideration to whether Glockzin committed indecency with a child by causing the child to engage in sexual conduct as alleged in the indictment. Accordingly, the court found that the trial court’s definition of “sexual conduct” did not constructively amend the indictment as to count two or authorize conviction on a theory not alleged in the indictment. Glockzin next contended that certain testimony at guilt-innocence introduced uncharged extraneous conduct, including an allegation that Glockzin infected J.M. with genital warts, possibly during an incident of alleged past abuse. Thus, the jury should have been instructed accordingly. The state responded that these acts constituted same-transaction contextual evidence. Same-transaction contextual evidence is admissible where “the facts and circumstances of the instant offense would make little or no sense without” it. Evidence of J.M.’s genital warts, the court stated, did not describe any particular act that constituted an extraneous offense. Rather, it explains how the abuse was discovered, the cause of the blood in J.M.’s underwear and her physical condition following the assault. Therefore, the court held that because the evidence of which Glockzin complains constituted same-transaction contextual evidence, no limiting instruction was required. Likewise, because the court disputed Glockzin’s argument that several incidents admitted into evidence were extraneous offenses, the trial court’s punishment charge did not need to contain a reasonable doubt instruction as to extraneous offenses. Also, the court found that Glockzin’s four misdemeanor convictions admitted as evidence are part of his prior criminal record and do not qualify as extraneous offenses that required reasonable-doubt instructions. In his fifth and sixth issues, Glockzin argued that the court’s charge improperly commented on the weight of the evidence as to both counts of the indictment. A jury charge, the court stated, should set forth the applicable law of the case without expressing an opinion on the weight of the evidence, summing up the testimony, or discussing the facts or using jury argument to arouse the sympathy or cite the passions of the jury. The undisputed evidence at trial established that J.M. was a child under the age of 14 and was not Glockzin’s spouse at the time of the offense. Thus, considering the entire charge, the court found that the trial court did not impermissibly comment on the elements of the offense or assume a disputed fact. Finally, the court found no ineffective assistance of counsel, because Glockzin premised his allegation of ineffective assistance of counsel on the court sustaining at least one of his points of error. OPINION:Reyna, J.; Vance and Reyna, J.J. CONCURRENCE:Gray, C.J., concurred without a written opinion.

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