PER CURIAM

A jury convicted Marion Duane Scoggins of indecency with a child. ⁽¹⁾ The court assessed punishment at sixteen years' imprisonment and ordered $15,900.94 in restitution. We will affirm the trial court's judgment.

Scoggins raises three points of error. He contends that the trial court erred by reading too much testimony back to the jury, in forming the jury charge, and in ordering restitution. If we find error, we must reverse unless we determine beyond a reasonable doubt that the error made no contribution to his conviction or punishment. Tex. R. App. P. 81(b)(2).

Scoggins complains by his first point of error that the court erred by reading testimony unresponsive to the jury's request during deliberations. The Code of Criminal Procedure provides that a jury that disagrees as to the statement of a witness may, "upon applying to the court, have read to them from the court reporter's notes that part of such witness['s] testimony or the particular point in dispute, and no other." Tex. Crim. Proc. Code Ann. art. 36.28 (West 1981) (emphasis provided). The jury requested reading of the victim's testimony regarding who was on the bed and where Mr. Scoggins was, resulting in the following exchange:

THE COURT REPORTER

Q: Tell us what happened on that occasion.

A: He said that we were all going to take a nap.

Q: Who said that?

A: Mr. Scoggins. And me and my sister, [A], and his son, [B], we laid down on the bed and we were going to take a nap. [*]

Q: Okay. I want to ask you some specific questions again of how" --

MR. MCCORMACK: Well, Your Honor --

THE COURT REPORTER: -- "he was touching" --

MR. MCCORMACK: -- I thought we had just gone over which parts were going to be read back.

THE COURT REPORTER: Oh, I'm sorry, Counsel. Let me read that again.

(Italics and asterisk added).

The court reporter reread the above passage down to the bracketed asterisk, then read:

Q: First I want to ask you: Was he laying on the bed with you?

A: Yes, sir.

The jury then resumed deliberating.

Scoggins contends that the passage read exceeded the scope of placing the parties on the bed by mentioning touching. He contends that the reading of the word "touching" disrupted the jurors' evaluation of the evidence and tainted the conviction. He argues that the error tipped the jury in a close case toward convicting him.

We find no reversible error for several reasons. Scoggins failed to preserve error by obtaining an adverse ruling. See Tex. R. App. P. 52(a). He interrupted the reading and the court reporter stopped reading. He did not seek to have the objectionable portion struck from the record, nor ask that the jury be instructed to disregard the objectionable portion. Further, the excess portion read was not testimony, but part of a question. The question segment did not state a forbidden act because the statute does not outlaw all touching of children. Ample evidence showed that Scoggins touched the particular, proscribed areas of the child's body for the particular, proscribed reason. The reporter stopped before the question mentioned any particular area touched. We find beyond a reasonable doubt that the excess portion did not contribute to his conviction. We overrule point one.

By point two, Scoggins contends that the court committed egregious error in the jury charge by failing to conform the charge to the indictment. He complains that the charge set out the elements of indecency with a child in the disjunctive, while the indictment set them out in the conjunctive. ⁽²⁾ Scoggins complains that the disjunctive charge allowed the jurors to convict on different theories; e.g., one juror might find that Scoggins touched her breast with an intent to arouse, while another might find that he touched her genitals with intent to gratify. Courts have considered and rejected this complaint. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S. Ct. 2309, 119 L. Ed. 2d 230 (1992); Pine v. State, 889 S.W.2d 625, 632 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). We overrule point two.

By point three, Scoggins contends that the court erred in ordering the payment of restitution because insufficient evidence supported that order. We review the decision to award restitution for abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). The record must contain evidence to show that the amount of restitution is just and has a factual basis. Id.; Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Crim. App. 1977). The State need not present evidence that the amount is reasonable. Davis v. State, 757 S.W.2d 386, 389 (Tex. App.--Dallas 1988, no pet.); see also In re J.R., 907 S.W.2d 107, 109 (Tex. App.--Austin 1995, no writ) (juvenile case applying criminal procedural concepts to restitution).

We find the trial court's award of $15,900.94 just. The amount awarded equalled the amount the victim's father claimed he had been billed for medical and counseling services provided to his daughter; the trial court rejected his claims for his own lost wages and expenses connected with the prosecution of the case. Contrary to Scoggins's contentions, we find that the victim's father stated that both hospitalizations and the subsequent counseling sessions arose from the victim's difficulties in coping with the actions for which Scoggins was convicted. Scoggins presented no contrary evidence, nor did he present any evidence that the medical expenses were unreasonable. We overrule point three.

Having overruled all points of error, we affirm the judgment.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: April 3, 1996

Do Not Publish

1. The jury acquitted him of aggravated sexual assault.

2. The charge allowed conviction if the jury found that he

did then and there intentionally or knowingly engage in sexual contact with [V], a child then and there younger than 17 years of age and not the spouse of said Defendant, by then and there touching the breast or a part of the genitals of the said [V] with the hand of said Defendant, with intent to arouse or gratify the sexual desire of said Defendant.

(Emphasis added). Each emboldened "or" was an "and" in the indictment.

convicting him.

We find no reversible error for several reasons. Scoggins failed to preserve error by obtaining an adverse ruling. See Tex. R. App. P. 52(a). He interrupted the reading and the court reporter stopped reading. He did not seek to have the objectionable portion struck from the record, nor ask that the jury be instructed to disregard the objectionable portion. Further, the excess portion read was not testimony, but part of a question. The question segment did not state a forbidden act because the statute does not outlaw all touching of children. Ample evidence showed that Scoggins touched the particular, proscribed areas of the child's body for the particular, proscribed reason. The reporter stopped before the question mentioned any particular area touched. We find beyond a reasonable doubt that the excess portion did not contribute to his conviction. We overrule point one.

By point two, Scoggins contends that the court committed egregious error in the jury charge by failing to conform the charge to the indictment. He complains that the charge set out the elements of indecency with a child in the disjunctive, while the indictment set them out in the conjunctive. ⁽²⁾ Scoggins complains that the disjunctive charge allowed the jurors to convict on different theories; e.g., one juror might find that Scoggins touched her breast with an intent to arouse, while another might find that he touched her genitals with intent to gratify. Courts have considered and rejected this complaint. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S. Ct. 2309, 119 L. Ed. 2d 230 (1992); Pine v. State, 889 S.W.2d 625, 632 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). We overrule point two.

By point three, Scoggins contends that the court erred in ordering the payment of restitution because insufficient evidence supported that order. We review the decision to award restitution for abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). The record must contain evidence to show that the amount of restitution is just and has a factual basis. Id.; Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Crim. App. 1977). The State need not present evidence that the amount is reasonable. Davis v. State, 757 S.W.2d 386, 389 (Tex. App.--Dallas 1988, no pet.); see also In re J.R., 907 S.W.2d 107, 109 (Tex. App.--Austin 1995, no writ) (juvenile case applying criminal procedural concepts to restitution).

We find the trial court's award of $15,900.94 just. The amount awarded equalled the amount the victim's father claimed he had been billed for medical and counseling services provided to his daughter; the trial court rejected his claims for his own lost wages and expenses connected with the prosecution of the case. Contrary to Scoggins's contentions, we find that the victim's father stated that both hospitalizations and the subsequent counseling sessions arose from the victim's difficulties in coping with the actions for which Scoggins was convicted. Scoggins presented no contrary evidence, nor did he present any evidence that the medical expenses were unreasonable. We overrule point three.

Having overruled all points of error, we affirm the judgment.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: April 3, 1996

Do Not Publish

1. The jury acquitted him of aggravated sexual assault.

2. The charge allowed conviction if the jury found that he

did then and there intentionally ormed

Filed: April 3, 1996

Do Not Publish

1. The jury acquitted him of aggravated sexual assault.

2. The charge allowed conviction if the jury found that he

did then and there intentionally or>

PER CURIAM

A jury convicted Marion Duane Scoggins of indecency with a child. ⁽¹⁾ The court assessed punishment at sixteen years' imprisonment and ordered $15,900.94 in restitution. We will affirm the trial court's judgment.

Scoggins raises three points of error. He contends that the trial court erred by reading too much testimony back to the jury, in forming the jury charge, and in ordering restitution. If we find error, we must reverse unless we determine beyond a reasonable doubt that the error made no contribution to his conviction or punishment. Tex. R. App. P. 81(b)(2).

Scoggins complains by his first point of error that the court erred by reading testimony unresponsive to the jury's request during deliberations. The Code of Criminal Procedure provides that a jury that disagrees as to the statement of a witness may, "upon applying to the court, have read to them from the court reporter's notes that part of such witness['s] testimony or the particular point in dispute, and no other." Tex. Crim. Proc. Code Ann. art. 36.28 (West 1981) (emphasis provided). The jury requested reading of the victim's testimony regarding who was on the bed and where Mr. Scoggins was, resulting in the following exchange:

THE COURT REPORTER

Q: Tell us what happened on that occasion.

A: He said that we were all going to take a nap.

Q: Who said that?

A: Mr. Scoggins. And me and my sister, [A], and his son, [B], we laid down on the bed and we were going to take a nap. [*]

Q: Okay. I want to ask you some specific questions again of how" --

MR. MCCORMACK: Well, Your Honor --

THE COURT REPORTER: -- "he was touching" --

MR. MCCORMACK: -- I thought we had just gone over which parts were going to be read back.

THE COURT REPORTER: Oh, I'm sorry, Counsel. Let me read that again.

(Italics and asterisk added).

The court reporter reread the above passage down to the bracketed asterisk, then read:

Q: First I want to ask you: Was he laying on the bed with you?

A: Yes, sir.

The jury then resumed deliberating.

Scoggins contends that the passage read exceeded the scope of placing the parties on the bed by mentioning touching. He contends that the reading of the word "touching" disrupted the jurors' evaluation of the evidence and tainted the conviction. He argues that the error tipped the jury in a close case toward convicting him.

We find no reversible error for several reasons. Scoggins failed to preserve error by obtaining an adverse ruling. See Tex. R. App. P. 52(a). He interrupted the reading and the court reporter stopped reading. He did not seek to have the objectionable portion struck from the record, nor ask that the jury be instructed to disregard the objectionable portion. Further, the excess portion read was not testimony, but part of a question. The question segment did not state a forbidden act because the statute does not outlaw all touching of children. Ample evidence showed that Scoggins touched the particular, proscribed areas of the child's body for the particular, proscribed reason. The reporter stopped before the question mentioned any particular area touched. We find beyond a reasonable doubt that the excess portion did not contribute to his conviction. We overrule point one.

By point two, Scoggins contends that the court committed egregious error in the jury charge by failing to conform the charge to the indictment. He complains that the charge set out the elements of indecency with a child in the disjunctive, while the indictment set them out in the conjunctive. ⁽²⁾ Scoggins complains that the disjunctive charge allowed the jurors to convict on different theories; e.g., one juror might find that Scoggins touched her breast with an intent to arouse, while another might find that he touched her genitals with intent to gratify. Courts have considered and rejected this complaint. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S. Ct. 2309, 119 L. Ed. 2d 230 (1992); Pine v. State, 889 S.W.2d 625, 632 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). We overrule point two.

By point three, Scoggins contends that the court erred in ordering the payment of restitution because insufficient evidence supported that order. We review the decision to award restitution for abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). The record must contain evidence to show that the amount of restitution is just and has a factual basis. Id.; Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Crim. App. 1977). The State need not present evidence that the amount is reasonable. Davis v. State, 757 S.W.2d 386, 389 (Tex. App.--Dallas 1988, no pet.); see also In re J.R., 907 S.W.2d 107, 109 (Tex. App.--Austin 1995, no writ) (juvenile case applying criminal procedural concepts to restitution).

We find the trial court's award of $15,900.94 just. The amount awarded equalled the amount the victim's father claimed he had been billed for medical and counseling services provided to his daughter; the trial court rejected his claims for his own lost wages and expenses connected with the prosecution of the case. Contrary to Scoggins's contentions, we find that the victim's father stated that both hospitalizations and the subsequent counseling sessions arose from the victim's difficulties in coping with the actions for which Scoggins was convicted. Scoggins presented no contrary evidence, nor did he present any evidence that the medical expenses were unreasonable. We overrule point three.

Having overruled all points of error, we affirm the judgment.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: April 3, 1996

Do Not Publish

1. The jury acquitted him of aggravated sexual assault.

2. The charge allowed conviction if the jury found that he

did then and there intentionally or knowingly engage in sexual contact with [V], a child then and there younger than 17 years of age and not the spouse of said Defendant, by then and there touching the breast or a part of the genitals of the said [V] with the hand of said Defendant, with intent to arouse or gratify the sexual desire of said Defendant.

(Emphasis added). Each emboldened "or" was an "and" in the indictment.

convicting him.

We find no reversible error for several reasons. Scoggins failed to preserve error by obtaining an adverse ruling. See Tex. R. App. P. 52(a). He interrupted the reading and the court reporter stopped reading. He did not seek to have the objectionable portion struck from the record, nor ask that the jury be instructed to disregard the objectionable portion. Further, the excess portion read was not testimony, but part of a question. The question segment did not state a forbidden act because the statute does not outlaw all touching of children. Ample evidence showed that Scoggins touched the particular, proscribed areas of the child's body for the particular, proscribed reason. The reporter stopped before the question mentioned any particular area touched. We find beyond a reasonable doubt that the excess portion did not contribute to his conviction. We overrule point one.

By point two, Scoggins contends that the court committed egregious error in the jury charge by failing to conform the charge to the indictment. He complains that the charge set out the elements of indecency with a child in the disjunctive, while the indictment set them out in the conjunctive. ⁽²⁾ Scoggins complains that the disjunctive charge allowed the jurors to convict on different theories; e.g., one juror might find that Scoggins touched her breast with an intent to arouse, while another might find that he touched her genitals with intent to gratify. Courts have considered and rejected this complaint. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S. Ct. 2309, 119 L. Ed. 2d 230 (1992); Pine v. State, 889 S.W.2d 625, 632 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). We overrule point two.

By point three, Scoggins contends that the court erred in ordering the payment of restitution because insufficient evidence supported that order. We review the decision to award restitution for abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). The record must contain evidence to show that the amount of restitution is just and has a factual basis. Id.; Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Crim. App. 1977). The State need not present evidence that the amount is reasonable. Davis v. State, 757 S.W.2d 386, 389 (Tex. App.--Dallas 1988, no pet.); see also In re J.R., 907 S.W.2d 107, 109 (Tex. App.--Austin 1995, no writ) (juvenile case applying criminal procedural concepts to restitution).

We find the trial court's award of $15,900.94 just. The amount awarded equalled the amount the victim's father claimed he had been billed for medical and counseling services provided to his daughter; the trial court rejected his claims for his own lost wages and expenses connected with the prosecution of the case. Contrary to Scoggins's contentions, we find that the victim's father stated that both hospitalizations and the subsequent counseling sessions arose from the victim's difficulties in coping with the actions for which Scoggins was convicted. Scoggins presented no contrary evidence, nor did he present any evidence that the medical expenses were unreasonable. We overrule point three.

Having overruled all points of error, we affirm the judgment.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: April 3, 1996

Do Not Publish

1. The jury acquitted him of aggravated sexual assault.

2. The charge allowed conviction if the jury found that he

did then and there intentionally or(8SPAN>

did then and there intentionally or