Allen v. State
| Decision Date | 27 August 2015 |
| Docket Number | NO. 01-13-00784-CR,01-13-00784-CR |
| Parties | ALFRED CARL ALLEN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 180th District Court Harris County, Texas
The trial court found appellant, Alfred Carl Allen, guilty of the offense of indecency with a child,1 found true the allegation in an enhancement paragraph thathe had previously been convicted of a felony offense, and assessed his punishment at confinement for twenty-five years. In five issues, appellant contends that the evidence is legally insufficient to support his conviction and the trial court erred in admitting the complainant's outcry statement offered by a school counselor, extraneous-offense evidence, and, during the punishment phase of trial, evidence of a prior felony conviction from the State of Louisiana to prove the enhancement allegation.
We affirm.
The complainant testified that when she was eleven years old, she spent the summer at her grandmother's apartment. One day, while she and her grandmother were "in front of her apartment on the steps," appellant, who was moving into a neighboring apartment, "walked over" and talked with her grandmother. He "kept staring at" the complainant and made her "feel real uncomfortable." Over time, appellant and her grandmother "got close," and he "started coming to her house" and assisting her grandmother with running errands. The complainant noted that he was "always over there" and "kept staring" at her.
On one occasion, as the complainant was walking into the kitchen, appellant was standing in the doorway and "touched [her] on [her] breast" as she passed by him. After she told her grandmother, who did not believe her, the complainant hidunder a dining room table. Appellant found her, "touched [her] on [her] breasts again," and then "touched [her] below [her] belt, [her] vagina." After the complainant began screaming, appellant left. When she told her brother what had happened, he did not believe her.
The complainant further testified that "[o]n the day that [she] got raped," her grandmother, who was cooking, sent her to appellant's apartment to retrieve something. After seeing appellant's fiancée and children leave their apartment, the complainant knocked on the door, and appellant answered and invited her inside. She declined, but he "told [her] to come in the house." After she stepped inside, appellant closed the door and locked it, "picked [her] up," and "threw" her on the floor. He then "pulled down" his "gym shorts," pulled down her shorts and underwear, and "raped her" by placing "his penis inside [her] vagina." The complainant explained that appellant held her down with his "body weight" while she screamed and hit him, "trying to push him off." And appellant "smil[ed]" at her, like he "thought it was funny."
After a "couple of" minutes, the complainant screamed louder, and appellant got off of her. She then ran home and told her grandmother that "Mr. Alfred [had] raped [her.]" However, her grandmother did not believe her. At some point after the incident, "it wasn't that day," appellant told the complainant that if she told anybody about what he had done, he would "hurt" her and her grandmother.
Approximately one year later, the complainant wrote about appellant's actions in her journal at school. After her teacher read the journal, the complainant spoke with her school counselor, who then contacted her mother. The complainant explained that, although she could not remember exactly when, she had previously told her mother, while they were in a car together talking about dating, about what appellant had done to her. When the complainant told her mother that she did not want her to date because she did not want "the same thing to happen" to her, her mother asked the complainant what she meant. And the complainant responded, "Mr. Alfred raped me." When her mother asked why she had not told her sooner, the complainant stated that she was afraid "something" would happen to her.
On cross-examination, the complainant could not recall whether appellant had abused her during the summer of 2008 or 2009. She asserted that he threw her down, "pulled off his shorts," unbuttoned her shorts and removed them, and then "fell on top of her." In contrast to her prior testimony, the complainant stated that she did not "scream for help" because "nobody can hear you at an apartment." And she asserted that appellant had threatened her "while he was on top of [her]." Although the complainant at one point stated that her mother "didn't know" about the abuse "until [the school counselor] told her," she then stated that her mother "already knew but she forgot."
Kelly Minor, the complainant's school counselor, testified that she spoke with the complainant in the fall of 2010 after her teacher had become concerned about her school journal entry. She told Minor that "two years prior," "during the summertime," while she was staying with her grandmother, appellant would "come over and help her [grandmother] with things that she physically could not do for herself." "[D]uring one occasion when he was there . . . working on a light fixture," he "needed [the complainant] to come back to his apartment to get something else so that he could finish the project and during that time that he raped her." When Minor asked the complainant whether he had "penetrated her," she replied that "he took her clothes off of her and that there was . . . vaginal penetration." Minor made a report to the Texas Department of Family and Protective Services ("DFPS") and contacted the complainant's mother. Minor noted that the complainant's mother had "brushed [her] off," saying that "there was not penetration" and appellant had "only laid on top of" the complainant.
Houston Police Department Officer N. Barnes, who was assigned to the Harris County Children's Assessment Center ("CAC"), testified that after DFPS referred the complainant's case to CAC, she scheduled a forensic interview and medical examination of the complainant. Barnes also interviewed the complainant's mother and father, Minor, and appellant. The complainant's mother explained that the complainant did stay with her grandmother during the summerof 2009, noting that her grandmother had since "passed away." The complainant's mother "didn't feel like [anything] had happened" with appellant and "didn't see any need to go any further with it."
CAC forensic interviewer L. Holcomb testified that on January 11, 2011, she interviewed the complainant and found her to be "forthcoming and very narrative when disclosing the events." Dr. L. Thompson, Jr., director of therapy and psychological services at CAC, testified that it is not unusual for there to be a delayed outrcry after a child has told someone about sexual abuse, but was not believed.
Dr. B. Isaac, a CAC staff physician, testified that she examined the complainant at a hospital in January 2011. After the trial court admitted into evidence, without objection, the complainant's medical records, Isaac testified about its contents and the "directed interview" that she had conducted with the complainant. Issac explained that although she found no physical evidence of injury during the examination, none was expected given that it had been two years since the alleged contact.
In his fifth issue, appellant argues that the evidence is legally insufficient to support his conviction because it does not establish that the offense was"committed on or before the date alleged in the indictment" or he "engaged in sexual contact with [the] complainant."
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
A person commits the offense of indecency with a child by contact if the person, with a child younger than seventeen years of age and not the person's spouse, engages in sexual contact with the child or causes the child to engage in sexual contact. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011). "Sexual contact" means the following acts, "if committed with the intent to arouse orgratify the sexual desire of any person: . . . any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child." Id. § 21.11(c)(1). The specific intent required may be inferred from a defendant's conduct and remarks, and all of the surrounding circumstances. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref'd). And the uncorroborated testimony of a child complainant, standing alone, is sufficient to support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2014); Bazanes, 310 S.W.3d at 40; Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Here, the complainant testified that when she was eleven years old, appellant "pulled down" his "gym shorts," pulled down her shorts and underwear, and "raped her," by placing "his penis inside [her] vagina." This...
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