Jones v. State

• Decision Date: 03 February 2006
• Docket Number: No. 03-04-00102-CR.,03-04-00102-CR.
• Citation: 184 S.W.3d 915
• Parties: Steven JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

184 S.W.3d 915

Steven JONES, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00102-CR.

Court of Appeals of Texas, Austin.

February 3, 2006.

COPYRIGHT MATERIAL OMITTED

David S. Barron, Bryan, for appellant.

Forrest L. Sanderson III, Asst. Crim. Dist. Atty., Bastrop, for appellee.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

Appellant Steven Jones was convicted by a jury of two counts of indecency with a child by contact and sentenced to ninety-nine years imprisonment, enhanced by a 1987 conviction for aggravated sexual assault. See Tex. Pen.Code Ann. § 21.11 (West 2003). In six issues, he appeals, asserting that the evidence is legally and factually insufficient, the jury charge contained reversible error, and the court erred in admitting his confession. We affirm the conviction.

Factual Summary

Appellant was indicted for touching the sexual organ of V.M., who was five or six years old at the time of the offense (count one), and touching the sexual organ and anus of D.M., who was three or four (count two); all of the inappropriate touching was alleged to have happened on the same night.¹ The victims are sisters, and appellant is their step-grandfather. Their parents are Victor Gianna and Christina Rawls. Gianna and Rawls were not married at the time of the offense, but have since married. Appellant is married to Mary Jones, who is Rawls's mother, and the victims refer to appellant as their grandfather.

Gianna testified as an outcry witness and said that in February 2003, appellant's name came up in conversation while V.M. was present, and V.M. started "just, like, panting and stayed real quiet." Gianna took V.M. aside and asked her if anything was wrong, saying he would not be angry at V.M. if something had happened. At first, V.M.'s "eyes got big and she stayed quiet for a while." Gianna talked to her "about good touch/bad touch," and asked "specifically what happened to her, if anything happens to her when she goes to her grandmother's house." V.M. told Gianna that appellant had touched her "in her private area." She "pointed to her private area" and started crying. Gianna then took D.M. aside to ask her the same question, and "she told [Gianna] the same thing." He asked her if her grandfather ever touched her in any way, and D.M. told him "[t]hat he would touch her in her private area." Rawls was with Gianna and D.M. during this conversation.²

Gianna denied having problems with appellant except that "he wasn't supposed to be around my kids, and he was always somehow around them."³ Gianna testified that he did not like it when the girls stayed with Mary Jones or with Jones's mother, Mary Stockton, because "they let [appellant] go over there and walk around freely and he would tell them he wanted to pick up the kids and he would pick them up and drive off."

Cynthia Ledesma, Christina Rawls's cousin, lived with Stockton. Ledesma said appellant frequently came over to see V.M. and D.M., but she never saw him behave inappropriately. She said that in March 2003, while Gianna was hiding from the police and the children were being cared for by relatives, he called and yelled at Stockton, telling her that he did not want the children to be around appellant. After hearing that complaint, Ledesma talked to each girl individually. V.M. told Ledesma that appellant "would touch her in her private area," and D.M. "said the same thing." Ledesma took the girls to the Bastrop County Sheriff's Office the next day.

V.M. was called to testify and, after some inconsistent answers early on, demonstrated to the trial court's satisfaction that she knew the difference between the truth and a lie. V.M. testified that one night while she and D.M. were at appellant's house watching cartoons and a "[n]asty" movie, appellant touched her on "[t]he private," which she also described as "[b]etween your legs." She testified that appellant touched her skin under her panties with his hand and that he touched D.M. "[o]n the behind." V.M. said that it was D.M. who turned off the "nasty movie."

Lee Nusbaum, an investigator with the Bastrop County Sheriff's Department, testified that in March 2003, after his office received a report of V.M.'s outcry, he interviewed appellant, who was already in police custody for parole violations. During the interview, Nusbaum showed appellant a videotape of an interview with the girls, and appellant lowered his head and began to cry. Appellant said he would not make a written statement but agreed to a videotaped statement. Nusbaum read appellant his rights and had him sign a form acknowledging that he had been informed of and understood his rights, and that he wished to waive them. Appellant told Nusbaum that on the night in question, about a month and a half before the interview, he was lying on his couch, watching pornographic movies with V.M. and D.M., and that he "reach[ed] down and touch[ed] [V.M.] between her legs and—twice between her legs." Appellant said he touched V.M. under her pants but not inside her panties, but said it was "possible" that he touched V.M.'s skin. Appellant said he was "[j]ust rubbing across her panties." Asked whether he had touched D.M., he said, "I don't know. There's a possibility that I could have, but not intentionally." Appellant thought D.M. turned off the pornographic movie.

Sufficiency of the Evidence

In his first two issues, appellant argues that the evidence is legally and factually insufficient to support the jury's verdict as to count two (the molestation of D.M.) because there was insufficient evidence to show he touched D.M. on her sexual organ or anus.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In reviewing the factual sufficiency, we view all of the evidence in a neutral light, comparing the evidence in support of a disputed fact with evidence tending to disprove that fact. Id. We will set aside a verdict for factual insufficiency only if the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the verdict. Id. at 11. We will reverse a fact-finder's determination only if the record indicates manifest injustice; otherwise, we will accord due deference to the determinations of fact, particularly those involving evaluations of credibility. Id. at 8-9. The jury is the sole judge of the weight and credibility of witness testimony. Barnes v. State, 62 S.W.3d 288, 298 (Tex.App.-Austin 2001, pet. ref'd). The jury may accept or reject all or any of the evidence presented by either side, may draw reasonable inferences from the evidence, and must reconcile any evidentiary conflicts. Id. We determine the sufficiency of the evidence by viewing the cumulative effect of all of the evidence, not each fact in isolation. Id. at 297.

A person commits indecency with a child by contact if he "engages in sexual contact with the child." Tex. Pen.Code Ann. § 21.11(a)(1). Sexual contact is "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 court of criminal appeals has stated that "we cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults." Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim.App.1990). A child need not testify with precision as to where she was touched, and evidence that she was touched on her "privates" or her "private area" or "between her legs" can support a finding that she was touched on her anus or genitals. See, e.g., Gallegos v. State, 918 S.W.2d 50, 54 (Tex.App.-Corpus Christi 1996, pet. ref'd) (seven-year-old victim told outcry witness that defendant kissed her, took off her clothes, and put his "pee-pee" "in front of" and "in back of" her); O'Hara v. State, 837 S.W.2d 139, 141 (Tex.App.-Austin 1992, pet. ref'd) (eleven-year-old victim testified that defendant touched victim's "privates" and put defendant's "privates" "into my rear end"); Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.-Fort Worth 1992, pet. ref'd) (thirteen-year-old victim testified that defendant touched her "private," her "pee pee," and "down there," and that he put "his hand down my pants and panties"), overruled in part on other grounds by Curry v. State, 861 S.W.2d 479, 482 n. 2 (Tex.App.-Fort Worth 1993, pet. ref'd); Guia v. State, 723 S.W.2d 763, 766 (Tex.App.-Dallas 1986, pet. ref'd) (nine-year-old victim testified that defendant "touched her in her `private place'"); Bryant v. State, 685 S.W.2d 472, 475 (Tex.App.-Fort Worth 1985, pet. ref'd) (five-year-old victim testified that defendant touched her under her underpants and "down between [her] legs").

In his statement to the police, appellant said that he might have touched D.M., but not intentionally. Gianna testified that D.M. told him the same thing that V.M. had told him, which was that appellant "touch[ed] her in her private area." Ledesma also testified that she spoke to both girls separately, that V.M. told her that appellant "touch[ed] her in her private area," and that D.M. "said the same thing." Finally, V.M., who was six years' old at the time she testified, said that she saw appellant touch D.M. "[o]n the behind." Viewed in the light most favorable to the jury's verdict, a reasonable jury could have found that this evidence established beyond a reasonable doubt that appellant touched D.M. either on her genitals or her anus. See Johnson, 23 S.W.3d at 7. Even when we view all of the evidence in a neutral light, there was no evidence presented that would dispute the State's evidence, which is not so obviously weak as to undermine confidence in the verdict. See id. at 11. We...