Lumsden v. State

Decision Date08 November 2018
Docket NumberNo. 02-16-00366-CR,02-16-00366-CR
Citation564 S.W.3d 858
Parties Raymond LUMSDEN, Appellant v. The STATE of Texas
CourtTexas Court of Appeals

ATTORNEY FOR APPELLANT: BRIAN SALVANT, ADAM L. ARRINGTON; FORT WORTH, TEXAS.

ATTORNEY FOR STATE: PAUL JOHNSON, CRIMINAL DISTRICT ATTORNEY; CATHERINE LUFT, CHIEF, APPELLATE DIVISION; ANDREA R. SIMMONS, LAURI FROHBIETER, LINDSEY SHEGUIT, PAUL HIEMKE, ASSISTANT CRIMINAL DISTRICT ATTORNEYS, FOR DENTON COUNTY, DENTON, TEXAS.

Before Walker, Meier, and Birdwell, JJ.

Opinion by Justice Meier

I. Introduction

A jury found Appellant Raymond Lumsden guilty of aggravated sexual assault of a child, indecency with a child, and criminal solicitation of a minor and assessed his punishment at confinement for life for each offense, and the trial court ordered the three life sentences to run consecutively. See Tex. Penal Code Ann. §§ 15.031, 21.11, 22.021 (West Supp. 2018) (setting forth elements of the offenses of criminal solicitation of a minor, indecency with a child, and aggravated sexual assault of a child, respectively). In fourteen issues, Lumsden appeals his convictions and sentences. We affirm.

II. Background1
A. The Victim

Allison,2 who was almost nine years old at the time of the trial, testified that after her mother Kelly started dating Lumsden, they moved in with him. Allison had her own room at Lumsden’s house.

On the night in question, Kelly went to bed early because she was not feeling well. Allison’s brother David had also gone to bed. Allison stayed up late watching television with Lumsden. At one point, she went upstairs to grab a blanket and a pillow because she was really sleepy. She laid down beside Lumsden, who was sitting on the couch watching television. While Allison was laying on her back on the couch, Lumsden put his pointer finger under her purple and pink monkey pajamas and under her panties and touched her "privates." Allison said that Lumsden touched the outside of her private that she used to pee and that his pointer finger stayed still, which made her "[a] little uncomfortable." Lumsden touched the inside of the part that Allison used to poop. Allison testified that Lumsden wanted her to touch "the thing he went pee with," but she said no. Allison became hungry and asked for red Jell-O, which Lumsden allowed her to have. Afterwards, Lumsden went to bed, and she slept on the couch because she was too tired to go upstairs to her room. Allison testified that the time on the clock reflected that it was midnight.

The next morning, after Kelly came downstairs and woke up Allison, Allison told her that Lumsden had touched her privates. Kelly then took Allison to the police station, and from there, the police escorted Kelly and Allison to the hospital. Allison told a nurse what Lumsden had done to her and underwent a physical exam.

The following day, Allison recounted the touching to a forensic interviewer at the Children’s Advocacy Center. Allison thereafter began seeing a counselor.

B. The Victim’s Mother

Kelly, who was divorced from Allison’s father, testified that she moved in with Lumsden in November 2014. On the evening of March 10, 2015,3 Kelly had a kidney infection

, took a muscle relaxer, and went to bed.

When Kelly went downstairs the next morning, she found Allison asleep on the couch. Kelly testified that finding Allison on the couch was unusual because she had her own bedroom.

Kelly sat down next to Allison on the couch, rubbed her back, and told her that it was time to wake up. Kelly said that Allison opened her eyes "really big" like she was "startled almost," looked at Kelly, and said she was really tired. Kelly asked Allison why she was tired, and she said, "Ray and I had a lot of fun last night." When Kelly asked what they did, Allison replied that it was a secret. Kelly told Allison that she was not to keep secrets from her. Allison said that she could tell Kelly one thing—that she and Lumsden had eaten Jell-O and cookies even though Allison knew that Kelly did not like her to have sugar at night. Kelly told her that it was sometimes okay to have sugar at night.

Kelly asked what Allison and Lumsden had done. At that point, Allison’s demeanor completely changed. Kelly explained that Allison "tightened up. She looked down. She looked scared. Something was wrong." Kelly testified that she had never seen Allison act like that. Allison said that she could not tell Kelly the other secret because Lumsden had told her "never ever to tell" and that Kelly would be mad. Kelly then asked Allison, "Did he touch you?" Allison said, "Yes, in two places," and she held up her fingers. Allison told Kelly that Lumsden had touched her "privates" and her bum, and she pointed down whenever she said privates. Kelly asked Allison whether Lumsden had touched her inside or outside her panties, and she said inside. Allison told Kelly that Lumsden had inserted his finger inside her privates and her bum, that he asked her if she liked it, that she said no, and that he said that was what mommy likes. Kelly told Allison, "Baby, you know that wasn't right. You know that was wrong. Right?" Allison said, "[Y]eah." Kelly asked Allison if she had touched Lumsden, and Allison replied, "He asked me if I wanted to, but I said no." Kelly picked up Allison and told her that she was proud of her for telling her what had happened and that they were going to talk to some other adults they could trust.

Once they were in the car, Kelly called 911, and the 911 operator guided her to the sheriff’s office. Kelly spoke briefly to two police officers at the Denton County Sheriff’s Office. Then, she followed a police officer to the hospital. Kelly testified that she was in the room when a sexual assault nurse examiner (SANE) examined Allison.

While they were at the hospital, Kelly received text messages from Lumsden. She "was really angry" and sent him a text that asked how he could have done this. Lumsden "was really mad" and responded that Allison had blamed her grandpa4 and her father5 for "the same things," that she could not be trusted, and that she needed help. Kelly testified that Allison had never told her that her grandpa or her father had touched her inappropriately and that she (Kelly) did not believe Lumsden’s texts.

The following day, Allison’s father took her to the Children’s Advocacy Center, and Kelly met them there. Kelly moved out of Lumsden’s house.

C. The Victim’s Half-Brother

Kelly’s son David testified that his mother had previously dated Lumsden, and David identified Lumsden in the courtroom. David said that on the night in question, he was at Lumsden’s house with Kelly, Lumsden, and Allison. David testified that he had school the next day but that Allison did not because she attended school in a different school district. David recalled that Lumsden had given Kelly some medicine because she was not feeling well and that she went to bed. David testified that he, Allison, and Lumsden had watched television for a while but that he had gone to bed about 9:30. David heard Lumsden tell Allison that she could stay up as long as she wanted because she did not have school the next day. When David went to bed, Allison and Lumsden were sitting next to each other on the couch.

The next morning when David went downstairs to eat breakfast, he saw Allison sleeping on the couch with a blanket over her. When he left for school, Allison was still asleep.

While David was at school, the receptionist notified him that his mom was going to be late because she was at the hospital. When Kelly eventually picked up David, they went to Lumsden’s house, and he packed a bag. After they left, Kelly received a call, and they returned to Lumsden’s house, which had police cars everywhere. David said that they went to a shelter that night. David did not recall Allison ever telling him about her grandpa or her father touching her inappropriately.

D. Denton County Sheriff Deputies Gilberto Velo and Maurice Floyd (the deputies)6

Deputy Gilberto Velo with the Denton County Sheriff’s Office testified that he and Deputy Maurice Floyd were dispatched to the patrol office on the morning of March 10, 2015, in response to a sexual assault call report. The deputies spoke with Kelly, who appeared to be shocked and in disbelief as she was talking. Deputy Velo said that Kelly teared up as she explained what Allison had told her had occurred the night before.

Deputy Floyd recalled that Kelly

began to unfold to us verbally what her daughter stated to her about secrets, plural, and her comment as I recall, she says, well, honey, you know, momma has always told you we don't keep secrets. And then her mother said, well, I need to know what those secrets are. And from what I call -- recall, she stated that her daughter stated to her that the secrets involved Jell[-O], that she would be rewarded, so to speak, Jell[-O] for, number one, keeping quiet about what the secret was about and then, number two, the mother began to elaborate on the fact that she had been touched in a -- her private area and that she wasn't -- she had been told, now, don't tell anybody. Don't say anything to mommy about this because basically momma does -- does this too to me, that being the actor.

Neither Deputy Velo nor Deputy Floyd interviewed Allison that day. Allison was not in the room while the deputies spoke with Kelly. Afterwards, Deputy Floyd spoke with one of the investigators, who advised him that Allison needed to be seen by a SANE at Denton Regional Medical Center.

Kelly and Allison then followed the deputies to Denton Regional Medical Center. The deputies contacted Child Protective Services to make them aware of the report they had taken. Once the investigators arrived at the hospital, the deputies left.

E. Investigator John Schofield

John Schofield, an investigator with the Denton County Sheriff’s Office, testified that he went to Denton Regional Medical Center on March 10, 2015, and obtained a box from a SANE and...

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    ...errors were either unpreserved or harmless, appellant's cumulative error claim nonetheless failed); Lumsden v. State, 564 S.W.3d 858, 899 (Tex. App.—Fort Worth 2018, pet. ref'd) ("Even considering the evidentiary errors we deemed harmless—admitting the video of the forensic interview, admit......
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    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact. Lumsden v. State , 564 S.W.3d 858, 898 (Tex. App.—Fort Worth 2018, pet. ref’d). The birth certificates constitute public records of vital statistics and thus would have been ......

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