Jones v. State, 01–13–00006–CR.

• Decision Date: 23 January 2014
• Docket Number: No. 01–13–00006–CR.,01–13–00006–CR.
• Citation: 428 S.W.3d 163
• Parties: Joey Dwayne JONES, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

428 S.W.3d 163

Joey Dwayne JONES, Appellant

v.The STATE of Texas, Appellee.

No. 01–13–00006–CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 23, 2014.

Stephen C. Taylor, Conroe, TX, for Appellant.

Jack Roady, District Attorney—Galveston County, Allison Lindblade, Assistant District Attorney, Galveston County, Galveston, TX, for State.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Joey Dewayne Jones, of the second-degree felony offense of indecency with a child and assessed punishment at ten years' confinement.¹ In two issues, appellant contends that (1) the State failed to present sufficient evidence that he touched the complainant's genitals, as alleged in the indictment, and (2) the trial court erroneously assessed attorney's fees for his court-appointed attorney against him.

We modify the judgment of the trial court and affirm as modified.

Background

In the summer of 2011, Sandtesia Hudson needed someone to watch her four-year-old daughter, the complainant, O.H., while she was at work. While at work one day, she met Roberta Jones Swearington, who noticed that Sandtesia appeared distressed and asked her what was wrong. After Sandtesia explained her childcare dilemma, Roberta first offered to contact one of her relatives. That individual was not able to watch O.H., so Roberta, who acted as the caretaker for her elderly mother, offered to take care of O.H. as well while Sandtesia was at work. Roberta watched O.H. for approximately three months without incident, and both Sandtesia and O.H. had a good relationship with her.

Appellant moved in with Roberta, his older sister, in 2011. Sandtesia testified that she and O.H. had met appellant on several occasions and that O.H. knew appellant as “Peanut.” On November 14, 2011, Roberta called Sandtesia in the morning, before Sandtesia had dropped O.H. off at Roberta's house, and told her that she needed to take her mother to the hospital. Roberta assured Sandtesia that she would not be gone long and that appellant would be at the house and could watch O.H. Sandtesia dropped O.H. off at Roberta's house around 2:00 p.m. Sandtesia picked O.H. up after her shift ended around 11:30 p.m. O.H. was watching television when Sandtesia arrived, and she testified that nothing about O.H.'s behavior appeared out of the ordinary. O.H. waved to appellant and told him “bye” before getting in Sandtesia's car. Sandtesia testified that, normally, when she drove O.H. home, they would talk about what she did that day and whether she behaved for Roberta. This evening, when Sandtesia asked O.H. how her day had been, O.H. replied, “I didn't do anything.” Sandtesia asked, “You didn't do anything the whole day?” O.H. started crying in response. Sandtesia testified that this response was “very unusual because [O.H. is] always ready to tell [Sandtesia] how exciting her day was and what [she] and [Roberta] did.”

O.H. then stated, “If I tell you, you're going to be mad at me,” and Sandtesia reassured her that she would not get mad, but she needed to know what had happened. O.H. told Sandtesia that she and appellant were “playing—doing grown stuff.” Sandtesia testified that O.H. told her that they were “doing things that grown-ups should do,” specifically, appellant touched her “in her private area, her poopah” and kissed her. O.H. elaborated that appellant had picked her up, wrapped her legs around him, and sat down on the couch so that O.H. was sitting on his lap. O.H. told Sandtesia that appellant then laid her on her back and kissed her, both on her mouth and on her neck, and then touched her “poopah,” which was the phrase that O.H. used to refer to her vagina. O.H. clarified that appellant touched her over her clothes.

Sandtesia stressed the importance of telling the truth and asked O.H., “Are you sure this happened?” O.H. responded, “Yes.” Sandtesia asked O.H. why she did not tell Roberta what had happened when she arrived back at the house, and O.H. responded, “Because he told me not to tell. It was a pinky promise or he would get me.” Sandtesia had never heard O.H. speak of “pinky promises” before that night. Sandtesia testified that O.H. was crying and scared while she related this information.

Instead of continuing home, Sandtesia immediately drove O.H. to the League City Police Department (“LCPD”) and explained to an officer what O.H. had told her. Sandtesia later took O.H. for a forensic interview at the Child Advocacy Center. The State did not offer the tape of that interview for admission into evidence.

O.H., who was six years old at the time of trial, also testified. Before her testimony, the trial court briefly questioned her to make sure that she knew the difference between a lie and the truth. O.H. stated that she would tell the truth, “what really happened,” while she testified. O.H. testified that she remembered staying at Roberta's house and that she liked Roberta. She also testified that she remembered appellant, whom she referred to as Peanut, and she identified him in court. The State showed O.H. an anatomically correct diagram and asked O.H. to identify several body parts. When the State pointed to the diagram's private area, O.H. agreed that she called it the “poopah.” When asked where appellant touched her, O.H. pointed to the diagram's private area and stated that she did not “feel comfortable saying” the name of it. She testified that appellant touched her with his hands and that he did not touch her anywhere else. She also agreed that appellant kissed her, but she did not “feel comfortable” saying where on her body he had kissed her.

On cross-examination, O.H. testified that Sandtesia told her that appellant was going to be present at the trial, but that she did not tell her “what [she] should talk about.” O.H. stated that she did not know why she never went back to Roberta's house and that something happened the last time she was there, but she did not “feel comfortable saying it.” She stated that she told Sandtesia what had happened to her, but she did not tell Roberta because she was scared. She did not feel comfortable relating what she had told Sandtesia to the jury. The following exchange occurred between O.H. and defense counsel:

[Defense counsel]: Has your mom talked to you about this a lot, why you're here today?

[O.H.]: Yes.

[Defense counsel]: How long has she been talking to you about it, for?

[O.H.]: I don't know.

[Defense counsel]: Does she talk to you about what you were supposed to say?

[O.H.]: (Nods head up and down)

[Defense counsel]: She did talk to you about what you were supposed to say?

[O.H.]: Yes.

[Defense counsel]: Did she tell you what you were supposed to say?

[O.H.]: Yes.

LCPD Detective M. Grant was assigned this case after Sandtesia made a complaint against appellant. Detective Grant observed O.H.'s forensic interview, but he did not take part in this interview, and he never directly spoke with O.H. After the forensic interview occurred, Detective Grant spoke with Roberta, appellant, and appellant's aunt. Both Roberta and appellant confirmed that appellant was alone with O.H. on the day of the incident. In this interview, appellant told Detective Grant that he did not touch O.H. Roberta and appellant's aunt both informed Detective Grant that they did not believe appellant had committed the offense and that they believed Sandtesia and O.H. were lying.

Detective Grant interviewed appellant a second time a few weeks later. Although appellant came in for an interview voluntarily and the interview was non-custodial, Detective Grant read appellant the Miranda warnings before proceeding with the interview. Appellant indicated that he understood these rights. In this interview, appellant admitted to touching O.H. Appellant also stated, “That girl, she's something else.” Detective Grant understood that statement to mean that appellant was sexually attracted to O.H. The trial court admitted video recordings of both of these interviews, and the State played them for the jury while Detective Grant testified.

On cross-examination, Detective Grant stated, “I've not seen a 5–year–old be so specific as to what the allegations were and then have the suspect confirm what the child is saying.” He reiterated several times that, in the second interview, appellant “corroborated what the child had said.” Detective Grant agreed with defense counsel that appellant was cooperative during the second interview, but he did not agree that appellant made a false confession during this interview.

Roberta testified that appellant was alone with O.H. from around 2:00 p.m. to 4:15 p.m. when she returned from the hospital with their mother. Roberta did not notice anything unusual about O.H. or her behavior, and O.H. did not tell Roberta that anything had happened to her earlier in the day. Roberta testified, “Being with [O.H.] for several hours, I would have noticed something.” She further testified, “[E]ven still to this day I'm still shocked by the allegations, you know, that's made against my brother because my brother's not that type of person.” Roberta also stated that, when appellant went to the police station for the second interview, he was “upbeat, [in a] good mood, [and] had nothing to hide,” but when he came out of the second interview, his demeanor was the “[t]otal opposite” and he was “a little upset” and depressed. Roberta testified that she was surprised that appellant had confessed and that appellant might have agreed with the officers that he committed the offense “[i]f he was under duress.”

Appellant testified on his own behalf. He testified that he used to flirt with Sandtesia, but both of them started seeing other people. He stated that after he started seeing someone else, Sandtesia's attitude towards him “just switched up and changed a little bit” and she “just looked more upset.” Appellant confirmed that he was alone with O.H. on the day of the incident,...