Jack Clough v. The State of Texas--Appeal from 220th District Court of Bosque County

NO. 10-90-098-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

JACK CLOUGH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 220th Judicial District Court

Bosque County, Texas

Trial Court # 89-12-11374-BCCR

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

Appellant was convicted of indecency with a child, and a jury assessed his punishment at ten years in prison, probated, and a $10,000 fine. See Tex. Penal Code Ann. 21.11(a)(1) (Vernon 1989). He complains that the court erred when it denied his challenge to the jury array and allowed testimony about uncharged extraneous offenses. The judgment will be affirmed.

At trial Appellant objected to the prospective jury panel and challenged the array on the grounds that the jury list was not certified, dated, or signed. See Tex. Gov't Code Ann. 62.004, 62.006 (Vernon 1988). His second point is that the court erred when it overruled the objection and denied his challenge.

Diana Wellborn, the District Clerk, testified that the list of prospective jurors was drawn at least ten days before the panel was summoned. Even if the list were not timely drawn, Appellant has failed to demonstrate any injury. See Stalcup v. State, 99 Tex. Crim. 415, 269 S.W. 1044, 1045 (1925). Furthermore, the failure to fill out or certify the list does not vitiate the panel. Howard v. State, 77 Tex. Crim. 185, 178 S.W. 506, 509 (1915). Point two is overruled.

Appellant testified that he did touch the victim on the outside of her clothes, but claimed that he did so to show her that type of conduct was inappropriate. The victim, who was then called as a rebuttal witness, recounted prior instances when Appellant touched her "privates." Appellant complains in point one that the court erred when it allowed her to testify about prior occasions when he touched her "privates."

Evidence of a defendant's past acts of sexual conduct may be used to establish the intent to arouse his sexual desire. Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim. App. 1986). Thus, the court properly allowed the testimony to rebut Appellant's claim that he did not touch the victim with the intent to arouse his sexual desire. Point one is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed July 25, 1991

Do not publish