Auld v. State, 06-21-00079-CR
| Docket Number | 06-21-00079-CR |
| Decision Date | 21 July 2022 |
| Citation | 652 S.W.3d 95 |
| Parties | Thomas Alan AULD, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Gena B. Bunn, Gena Bunn, PLLC, Longview, for Appellant.
Barry Clark Wallace, Upshur County District Attorney's Office, Gilmer, for Appellee.
Before Morriss, C.J., Stevens and van Cleef, JJ.
An Upshur County jury found Thomas Alan Auld guilty of eight counts of indecency with a child by contact.1 Of the eight counts, six accused Auld of touching Kate's2 genitals, and two accused him of causing her to touch his genitals. Auld now appeals, alleging various errors. We modify the judgments by changing the recited degree of offense for each count from a first-degree felony to a second-degree felony to accurately reflect the nature of the convictions. We affirm the modified judgments, because (1) sufficient evidence supports Auld's convictions, (2) Auld did not preserve his complaints about admission of extraneous-offense evidence at guilt/innocence, (3) Auld failed to preserve his complaints about two witnesses’ testimony, (4) admission of witness testimony under the excited-utterance exception to the rule against hearsay was harmless error, and (5) Auld has not established ineffective assistance of counsel.
Admittedly, much of the evidence on the eight charges against Auld was not a model of clarity. Most came from Kate, the victim. The State filled in added evidence from Sexual Assault Nurse Examiner (SANE) Misty Edzards; Kate's stepfather, Charles; Kate's close friend and a minor, Cassie; and Kate's close friend and relative, Autumn, also a minor.
Kate was twelve years old at trial. When she was ten or eleven years old, Kate often spent the night or weekend with Autumn, who was related to both Auld and Kate. Kate's trial testimony described multiple incidents in which she was alone with Auld and he engaged in illegal sexual contact with her. Over the course of Auld's predations on Kate, Auld lived in three different houses, and those houses were used to identify the timing of events relevant to the charges. According to Kate, Auld lived in houses on Crawford and Trinity Streets and, for a couple of weeks, lived in Kate's family's house in Bettie.
From Kate's testimony, it appears that most of Auld's charged behavior occurred on evenings he drove Kate home after she had visited Autumn overnight or on weekends. Kate described an occasion when Auld drove her home from his house on Trinity Street and suggested they play a game, dare or die, which Kate played with her cousins.3 Kate elected for Auld to choose a "dare." Auld's dare to her was for her to touch his penis. Auld unbuttoned his pants, "grabbed" Kate's hand, placed it on his erect penis, and "moved" Kate's hand on his penis. When Kate was reluctant to choose a dare, Auld elected to touch her. When asked how Auld touched her on that occasion, Kate stated that he put his hand on the skin beneath her underwear in her "private area" and moved his hand. He also touched her "other private area," under her shirt. Auld engaged in those contacts while driving, stopping only when he reached "the last corner" before Kate's house. Auld warned Kate not to tell anyone for two expressed reasons: first, because he would get in trouble and, second, because Kate would never get to see Autumn again.
Kate testified that she would stay overnight with Autumn on almost all occasions when Autumn stayed with Auld. The pattern during that time frame was for Autumn to be with Auld every other weekend. When it was time for Kate to go home, she said that usually her mother or stepfather would pick her up. Kate said that, "most of the time," her mother retrieved her from the house on Trinity, while Auld would usually take her when he was living on Crawford Street.
When Auld took her home, it was "mainly" during the day, but sometimes in the evening. When he took her home during the day, no untoward conduct occurred. But there were nighttime trips, too.
When Auld took Kate home at night, the two were always alone in his car. Kate testified that "about half the time" Auld took her home at night, he would engage in sexual contact with her.
Kate's stepfather, Charles, testified that Auld lived at the house on Crawford Street "[p]robably about seven or eight months" sometime between late 2017 and 2018. Around early 2019, Auld moved to Trinity Street where he lived with his mother. Charles told the jury that, when Auld lived at the house on Crawford, he usually brought Kate back after staying the night or weekend with Autumn. "Sometimes" Auld returned Kate during the daytime, with other children in the car. When Auld brought Kate home at night, they were alone in the car. Sometime later, Auld came to live with Kate, her mother, and her stepfather, during which time Auld would occasionally babysit Kate and her siblings and had opportunity to be alone with them or her.
The last time Auld touched her was before the COVID pandemic began in 2020. About a year after the last touching, she told her friend Cassie, who urged Kate to tell her parents. Kate delayed any report, as she was worried that, if she told her mother, that might interrupt her stepfather's plans to adopt her. Cassie told Kate's mother a few days later.
Auld challenges the sufficiency of the evidence to support eight allegations of indecency by contact. The indictment's counts alleged as follows:
Kate could not recall when Auld lived in a particular house. As the State is not bound by the indictment's dates,5 we will look for specific evidence that could rationally satisfy each count.
When we review the sufficiency of the evidence, we are to determine whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Witcher v. State , 638 S.W.3d 707, 709–10 (Tex. Crim. App. 2022) ; see Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.—Texarkana 2019, pet. ref'd) (citing Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Hartsfield v. State , 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd) ). This leaves the jury the responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Witcher , 638 S.W.3d at 710. The fact finder may and should draw "reasonable inferences" from the evidence but may not engage in "mere speculation." Id.
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Williamson , 589 S.W.3d at 298 (quoting Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ). "The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.’ " Id. (quoting Malik , 953 S.W.2d at 240 ).
"In our review, we consider ‘events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.’ " Id. (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985) )). "It is not required that each fact ‘point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.’ " Id. (quoting Hooper , 214 S.W.3d at 13 ). "Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Id. at 297 (citing Ramsey v. State , 473 S.W.3d 805, 809 (Tex. Crim. App. 2015) ; Hooper , 214 S.W.3d at 13 (citing Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) )). "Further, ‘we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted.’ " Id. (quoting Fowler v. State , 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev'd in part by 544 S.W.3d 844 (Tex. Crim. App. 2018) ) (citing Moff v. State , 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004) ).
The jury, as "the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’ " Id. (quoting Thomas v. State , 444 S.W.3d 4, 10 (Tex. Crim. App. 2014) ). "We give ‘almost complete deference to a jury's decision when that decision is based on an evaluation of credibility.’ " Id. (quoting Lancon v. State , 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) ). The jury is permitted to draw any reasonable inference from the evidence as long as it is supported by the record. See Hooper v. State , 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). Contradictions in the evidence are reconciled by the jury and will not result in reversal so long as there is enough credible testimony to support the verdict. Bowden v. State , 628 S.W.2d 782, 784 (Tex. Crim. App. 1982)....
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