Foster v. State

• Decision Date: 11 August 2017
• Docket Number: No. 05-15-01539-CR.,05-15-01539-CR.
• Parties: Devante Jerome FOSTER, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

525 S.W.3d 898

Devante Jerome FOSTER, Appellant

v.The STATE of Texas, Appellee

No. 05-15-01539-CR.

Court of Appeals of Texas, Dallas.

Opinion Filed August 11, 2017

Riann C. Moore, Dallas County Public Defenders Office, Dallas TX, for Appellant.

Faith Johnson, Susan Hawk, Dallas County District Attorney, Kimberly Duncan, Assistant District Attorney, Dallas TX, for State of Texas.

Before Justices Francis, Brown, and Schenck

OPINION

Opinion by Justice Francis

A jury convicted Devante Jerome Foster of aggravated sexual assault of six-year-old J.S., and the trial court assessed punishment at life in prison. In five issues, appellant contends venue was not proven, he is entitled to a new punishment hearing because the punishment record has been lost or destroyed, the trial court erred by admitting certain evidence, and his life sentence is grossly disproportionate to the offense and violates the objectives of the penal code. After reviewing the record, we overrule all issues. In a cross-issue, the State requests that we modify the judgment to correct several errors. A judgment has been filed correcting the errors, which moots the State's cross-issue. We affirm the trial court's judgment.

Tiffany S. is the mother of J.S. She met appellant through her brother, and appellant became a close friend of the family. In December 2007, Tiffany gave birth to J.S. J.S.'s father was not around, and appellant helped her with "[a]nything possible that we needed." Tiffany appreciated appellant's help because she was a single mother to J.S. and two daughters. Appellant bought J.S. toys and clothing, brought him his favorite foods to eat, and spent time with him. By the time J.S. was five years old, he was spending the night with appellant on weekends and had asked to call appellant "Dad." At the time, appellant lived in an apartment in Grand Prairie with his mother and brother. Appellant had his own bedroom, and when J.S. spent the night with him, the two shared a bed.

At first, J.S. went to appellant's apartment by himself. But, at some point, J.S. wanted someone to go with him on his overnight visits. J.S.'s two sisters went once, and some of his male cousins went with him at other times. On one occasion in the summer of 2014, J.S.'s ten-year-old uncle, J.J., went with him. Several weeks later, J.J. told his mother, Falicia, (J.S.'s maternal grandmother) that appellant made him "suck his private part" and "had sex" with him. That same day, J.S. told Falicia that his "dad" had done "the same thing" to him. Specifically, J.S. told his grandmother that he "would suck his dad's middle part," his dad "would in return suck his," and his dad "would have sex with him in the behind."

Falicia immediately called J.S.'s mother and was in the room when J.S. told his mother what happened. Later, Falicia asked the other children if anything had happened to them, and two of her grandsons reported appellant "made some sexual gestures" toward them. According to Falicia, one grandson said he was in bed and appellant came up behind him and "went around the rim of his underwear." The child got out of bed and went to the living room. A second grandson said appellant "rubbed him on his thigh and his middle part."

Tiffany and Falicia went to the Grand Prairie Police Department the next day and reported what happened. Detective Timothy Paulson was assigned the case. He took statements from both women, observed the interviews of J.S. and J.J. at the advocacy center, and completed referrals for the boys to undergo physical examinations at Children's Medical Center. He then went to what he believed was appellant's address and met with a lady there who knew appellant. Later that day, appellant left twenty or more messages for Paulson. When Paulson called him back, they arranged for appellant to come to the station for an interview. During that interview, appellant acknowledged J.S. called him "Dad," he referred to J.S. as his "son," and J.S. spent the night with him by himself. He also confirmed he babysat both J.S. and J.J. within the past couple of months, and both slept in the same bed with him. He denied touching either child.

At trial, J.S. testified appellant was his "dad." J.S. said when he went to appellant's home, he played video games. When he stayed overnight, he slept in the bed with appellant. J.S. said appellant "did something" to him that was "bad" and explained appellant put his "middle part" in J.S.'s "behind." He said it "hurt." Using a drawing of an unclothed boy, J.S. identified the body parts he called the "middle part" and "behind." He said when he went to the restroom, there was blood. On one occasion, he said, J.J. was in the room when appellant put his middle part in his behind. J.S. also said appellant "used to make" him "suck on his middle part" and appellant "peed" in J.S.'s mouth. J.S. said it tasted "[n]asty."

J.J. testified he spent the night at appellant's apartment with J.S. When it was time to go to sleep, he and J.S. slept in the bed with appellant. J.J. said he was awakened when he "felt something" in his "booty." J.J. moved, and appellant grabbed his hand and placed it on appellant's "private part." Appellant pulled J.J. on top of him and "kept pushing" on his booty before saying, "It ain't going nowhere." At the time, J.J. had on a shirt and underwear. J.J. said he got up, and "some white stuff" was on his shoulder. J.J. went to the bathroom to clean off his shoulder, and appellant made him come back into the room. Later that night, appellant put his private part into J.J.'s booty. At that time, J.J.'s underwear was down by his knees. He told the jury appellant also made him "suck" on his private part and it made his mouth feel "nasty." Appellant let him stop when "[s]omething white" came out of appellant's private part, and J.J. went to the bathroom and washed out his mouth. J.J. said he tried to get help from appellant's mother by knocking on her bedroom door, but she told him to go away. He also tried to use appellant's cell phone, but it fell behind the bed. Eventually, J.J. fell asleep on the floor. Although he said he did not see appellant do anything to J.S. that night, he felt the bed move and heard J.S. say, "Get off of me." The bed stopped shaking when J.J. threatened to go tell. The next day, J.J. told J.S. what happened to him, and J.S. said it happened to him too.

Bibiana Dominguez, a forensic interviewer with the Dallas Children's Advocacy Center, explained the process of interviewing alleged victims of child abuse. She said younger children have shorter attention spans and also communicate limited information. Dominguez interviewed both J.S. and J.J. J.S. did not seem focused at times and "bounced around." But he made an outcry of sexual abuse and identified the perpetrator as his dad. J.J. also made an outcry and identified the perpetrator. She saw no signs suggesting the children had been coached.

Sandra Onyinanjay is a certified pediatric nurse practitioner and the Sexual Assault Nurse Examiner (SANE) coordinator at Reach Clinic at Children's Medical Center in Dallas. Onyinanjay performed examinations of both J.S. and J.J., and both were "normal." She said she expected a "normal exam" because it had been one month since the last incident and any injuries would have healed in that time. She described the examination process and said the lack of abnormal medical findings did not necessarily mean that abuse did not occur. Rather, she explained, our bodies are made "to heal and recover" from traumatic events and said it is uncommon to have medical findings in a case where anal penetration has been alleged.

Katherine Dumond, a clinical supervisor at the Dallas Children's Advocacy Center, testified generally about sexual abuse trauma and therapy techniques. She also explained the process of "grooming" used by child offenders to "prepare" their victims. She said abusers groom the parents to gain their trust. They then begin to "work on" and "manipulate" the child, not only so the abuse can begin but also so it can continue. She explained delayed outcry and the reasons children either wait to tell or never tell on their abusers. According to Dumond, some children are too young to understand what is happening to them. For example, a child who is being sexually abused by a father figure may believe "this is what fathers do." After the State rested, the defense called Dr. Michael Gottlieb, a psychologist who testified about the risk of altering a person's memory through therapy. Other witnesses were recalled to highlight inconsistencies in J.J.'s testimony. After hearing the evidence, the jury found appellant guilty of sexually assaulting J.S. The trial court discharged the jury, heard the punishment evidence, and imposed a life sentence.

In his first issue, appellant contends the State failed to prove that venue was proper in Dallas County. He argues the evidence is "patently not clear" where the offense occurred, Dallas County or Tarrant County. We disagree.

Sexual assault may be prosecuted in the county where the act occurs. TEX. CODE CRIM. PROC. ANN . art. 13.15 (West 2015). Venue must be proved by a preponderance of the evidence. Id. art. 13.17 (West 2015). Proof of venue may be established by direct or circumstantial evidence, and the jury may draw reasonable inferences from the evidence. Cox v. State , 497 S.W.3d 42, 56 (Tex. App.—Fort Worth 2016, pet. ref'd).

J.S.'s mother testified J.S. spent the night with appellant while appellant was living at the Cottonwood Apartments in Grand Prairie with his mother and brother. She thought the apartment was "probably" in Tarrant County, but she did not know. Appellant's aunt testified that appellant's mother lived in Grand Prairie. She also testified she believed the residence was in Tarrant County but was "not sure."

Paulson, the Grand Prairie police detective assigned to the case, questioned appellant about the offense. Paulson testified he had been with Grand Prairie for ten...