in Re: Brock Jernigan ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00114-CR

                                                ______________________________

                                                     IN RE:  BROCK JERNIGAN

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Brock Jernigan has petitioned this Court for mandamus relief.  He complains of the trial court’s order denying Jernigan an appeal bond.^[1]  Since Jernigan has an adequate remedy by appeal, we deny his request for mandamus relief.

            The standard for mandamus relief articulated by the Texas Court of Criminal Appeals requires the relator to establish that (1) there is no adequate remedy at law to redress the alleged harm; and (2) only a ministerial act, not a discretionary or judicial decision, is being sought.  State ex. rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).  Due to the nature of this remedy, it is Jernigan’s burden to properly request and show entitlement to the mandamus relief.  Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

            The Texas Code of Criminal Procedure expressly provides that a trial court’s order regarding an appeal bond may be appealed. Tex. Code Crim. Proc. Ann. art. 44.04(g) (West 2006).  Because Jernigan has a right to appeal the trial court’s order, mandamus is not available.  See Ordunez v. Bean, 579 S.W.2d 911, 913–14 (Tex. Crim. App. 1979) (because appeal is available to challenge speedy-trial ruling, mandamus not available). 

            We deny Jernigan’s request for mandamus relief.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          June 9, 2011   

Date Decided:             June 10, 2011

Do Not Publish

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^[1]From the record before us, it appears Jernigan was placed on deferred adjudication community supervision, subsequently adjudicated and sentenced to five years’ incarceration.  He requested a bond while he appealed his conviction and sentence, but the trial court denied bond.  In the trial court’s order, that court stated its ruling was based on the pendency of another offense alleging assault, and the potential for Jernigan to commit another offense if released on bond.  Jernigan’s appeal of the underlying offense and sentence is pending before this Court, Jernigan v. State, cause number 06-10-00221-CR.

:yes'>  Id.

            The statement in this case is more than a mere allusion that sexual abuse occurred and is certainly more descriptive than the statement in Castelan that the defendant “put his thing in through the back,” which really does not describe any type of sexually abusive incident.  Here, the victim told Jones, “Brandon said he was going to stick his ding-a-ling in my butt.” Jones replied, “Well, did he?”  The victim responded, “yes.” 

            Jones’s response of “Well, did he?” implies that she knew precisely what the victim was talking about when he made the allegation. While Jones testified that the term “ding-a-ling” was not a term that she used and she did not know how the victim was familiar with that term, her actions immediately following the allegation indicate that she understood the victim was alleging a specific incident of sexual abuse.^[2]  Upon hearing the allegation, Jones immediately called Crowmeans.  Crowmeans called Hawley, who spoke with Jones and instructed her to take certain steps to preserve potential evidence.  Hawley arrived on the scene and initiated an investigation, resulting in Alexander’s arrest.

            Helpful to our determination is the case of Gallegos v. State, in which the Corpus Christi court held that when a child has sufficiently communicated that the touching occurred to a part of the body within the definition of the statute, the evidence will be sufficient to support a conviction regardless of the unsophisticated language the child uses.  Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.––Corpus Christi 1996, pet. ref’d).  The statute provides, and the jury was instructed, that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration of the anus of a child by any means and the victim is younger than fourteen years of age.  Tex. Penal Code Ann. § 22.021.  Here, the victim clearly communicated to Jones that Alexander penetrated the anus of the victim.  The fact that the victim used the term “ding-a-ling” does not diminish the fact that the victim communicated an act defined as aggravated sexual assault under the statute.  The evidence here was sufficient to show that the victim described the offense in a discernible manner to Jones before he talked with Lach.  Accordingly, Jones was the proper outcry witness. This point of error is overruled.

III.       CONCLUSION

            We affirm the judgment of the trial court.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          December 8, 2010

Date Decided:             December 9, 2010

Do Not Publish

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^[1]The indictment in this case alleged aggravated sexual assault of a child under the age of fourteen years by causing the sexual organ of the defendant to penetrate the anus of the victim.  See Tex. Penal Code Ann. § 22.021 (a)(1)(B)(i), (2)(B) (Vernon Supp. 2010).

^[2]Significantly, in his written confession, Alexander uses the term “ding-a-ling” when referring to his penis.