Lee v. State

• Decision Date: 15 June 2005
• Docket Number: No. 01-03-00654-CR.,01-03-00654-CR.
• Citation: 176 S.W.3d 452
• Parties: Leon David LEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

176 S.W.3d 452

Leon David LEE, Appellant, v. The STATE of Texas, Appellee.

No. 01-03-00654-CR.

Court of Appeals of Texas, Houston (1st Dist.).

November 18, 2004.

Discretionary Review Granted June 15, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Alan Disher, Houston, for appellant.

B. Warren Goodson, Jr., Assistant District Attorney, Galveston, for appellee.

Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.

OPINION

SHERRY RADACK, Chief Justice.

Leon David Lee, appellant, pleaded not guilty to indecency with a child. The jury found him guilty and found two enhancement paragraphs true. The jury assessed punishment at 25 years' confinement. In three points of error, appellant contends that (1) the evidence is factually insufficient to support his conviction; (2) the trial court erred in permitting the State to ask improper commitment questions during voir dire on the one-witness rule; and (3) the trial court erred in admitting evidence concerning appellant's bond jumping as an inference of guilt during the guilt-innocence stage of trial. We affirm.

BACKGROUND

In the fall of 2001, Alice Copelin and her then six-year-old daughter, B.C., the complainant, began living with her mother, Marsha Wilson, and appellant, who Wilson later married. During this time, appellant and Wilson watched B.C. in the evenings and nights while Copelin was at work. Two months after moving in with appellant and Wilson, Copelin noticed changes in B.C.'s behavior, including severe nightmares, sleepwalking, and excessive masturbation. When Copelin asked B.C. if appellant had ever touched her or done anything harmful to her, she answered that he had. B.C. told Copelin that appellant had rubbed and squeezed "her private area, her groin area." In November 2001, a registered nurse at the Atlanta Memorial Hospital in Atlanta, Texas, performed a medical examination on B.C. Copelin also took B.C. to the Texarkana Children's Advocacy Center where Shanon Tifton, an employee of the center, video-recorded an interview with B.C.

Appellant was charged with indecency with a child. See TEX. PEN.CODE. ANN. § 21.11 (Vernon 2003). Gulf Coast Bail Bonds posted bond for appellant's release pending his trial. Trial was first set for October 28, 2002, a date of which appellant was notified by an employee of the bonding company. However, appellant stopped checking in with the bonding company's employees on October 25, 2002, three days before the trial date. The last contact appellant had with the bonding company was by telephone from a Florida area code. On February 5, 2003, appellant was in custody in Florida on felony bond forfeiture after a warrant had been issued for his arrest. On February 16, 2003, Officer R. Friedley of the Galveston County Sheriff's Department flew to Florida and extradited appellant from Florida to Texas for trial.

At trial, B.C. testified regarding several incidents where she was touched by appellant. In addition, the State presented video testimony of B.C. being questioned at the Texarkana Children's Advocacy Center. The video was taken shortly after B.C. made outcry statements to her mother, Copelin, and her grandmother, Wilson. Copelin and Wilson also testified for the State regarding the outcry statements B.C. made to each of them separately.

Factual Sufficiency of the Evidence

In his first point of error, appellant asserts that the evidence was factually insufficient to support his conviction. We review the factual sufficiency of the evidence by reviewing all of the evidence neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). The Court of Criminal Appeals has recently discussed the factual-sufficiency standard:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). We must consider the most important evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

Appellant contends the evidence is factually insufficient because (1) B.C. was unable to say exactly where she was touched by appellant; (2) no direct evidence put appellant in violation of the Texas Penal Code when B.C. used the term "private" to indicate where she was touched, but the term was never defined at trial; (3) the case was predicated on only one witness, the complaining witness, B.C.; (4) B.C.'s videotaped testimony contained suggestive questions and contradictory responses; and (5) Dr. Lukifer's testimony consisted of reading the medical history that contained only hearsay and no physical evidence.¹

In order to prove the offense alleged in the indictment incorporated in the court's instruction to the jury, the State was required to prove beyond a reasonable doubt that the defendant, with intent to arouse or gratify his sexual desire, engaged in sexual contact with a child, and that the victim was then a child younger than seventeen and not the spouse of the defendant. See TEX. PEN.CODE. ANN. § 21.11(a) (Vernon 2003). For the offense of indecency with a child, "sexual contact," in relevant part, is defined as "any touching by a person, including through clothing, of the anus, breast, or any part of the genitals of a child." See TEX. PEN.CODE. ANN. § 21.11(c)(1) (Vernon 2003).

At trial, B.C. testified that appellant "touched me where he is not supposed to." Specifically, she testified that appellant had touched her on the "bottom private" part of her body, which she indicated was below her waist. However, she could not remember if it was her front or back "private." In her videotape testimony, she indicated where appellant touched her by circling the area below her waist and between her legs on an anatomically correct frontal drawing of a girl and calling it her "titi." B.C. stated that appellant touched her with his hand and that it happened on more than one occasion. In addition to her testimony, B.C.'s mother, Copelin, testified that B.C. pointed to "her private area, her groin area" in "the front" when asked where she had been touched by appellant. According to the records of B.C.'s medical examination at Atlanta Memorial Hospital, B.C. explained to the nurse what happened with appellant: "Papa touched me in my privates. He touched my tootie. He touched me with his hands. He squeezed. He rubbed it."

The courts liberally construe the testimony given by child victims of sexual abuse as not being as clear as that which may be given by an adult. See, e.g., Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990) (cannot expect child victims of crime to communicate with ability and clarity of mature adult); Guia v. State, 723 S.W.2d 763, 765 (Tex.App.-Dallas 1986, writ ref'd) (being touched where one "uses the restroom" sufficient for sexual contact). As long as the child communicates to the trier of fact that the touching occurred on a part of the body within the definition of the statute, the evidence will be sufficient. See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977) (reaffirmed rule that "evidence [is] sufficient to show a touching of the genitals or `sexual parts' even though the victim used language different from that in the statute to describe the part of the body touched"); Guia, 723 S.W.2d at 766; Bellfey v. State, 638 S.W.2d 48, 51 (Tex.App.-Houston [1st Dist.] 1982, no writ) (phrase "his you know what" was sufficient to describe appellant's penis, citing to testimony by other witnesses that, shortly after the attack, complainant stated that appellant stuck "something in the complainant's butt"). Given the testimony of both B.C. and Copelin, we find that the evidence was sufficient to show that the touching occurred in a place within the statutory definition of sexual contact. See Tyra v. State, 534 S.W.2d 695, 697 (Tex.Crim.App.1976), overruled on other grounds, Cooper v. State, 631 S.W.2d 508 (Tex.Crim.App.1982) (testimony that accused put his hands "between my legs" sufficient to support indictment alleging accused touched vagina); Thomas v. State, 399 S.W.2d 555, 556 (Tex.Crim.App.1966) (testimony that accused touched complainant's "private" and "where I pee" sufficient to sustain allegation that accused touched child's vulva).

Although appellant complains that the case was predicated mainly on the testimony of the complaining witness, B.C., which appellant claims contained contradictory responses, this does not make the evidence insufficient. The testimony of a child victim alone is sufficient to support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp.2004-2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd).

In support of his assertion that B.C.'s videotaped testimony contained...