Smith v. State
| Decision Date | 10 March 2011 |
| Docket Number | No. 01–09–00749–CR.,01–09–00749–CR. |
| Citation | 340 S.W.3d 41 |
| Parties | Jesse James SMITH, Appellant,v.The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
John J. Davis, Attorney At Law, Angleton, TX, for Appellant.David Bosserman, Assistant Criminal District Attorney, Jeri Yenne, Criminal District Attorney, Angleton, TX, for State of Texas.Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
Appellant, Jesse James Smith, appeals a judgment convicting him for continuous sexual assault of a child, for which he was sentenced to 70 years in prison. See Tex. Penal Code Ann. § 21.02 (West Supp. 2010). In six issues, appellant challenges the sufficiency of the evidence, the instruction to the jury that purportedly assumed an element of the offense, and the trial court's exclusion of text and voice messages that appellant wanted to use to impeach a witness. We conclude that the evidence is sufficient, that the erroneous jury instruction concerning the failure to expressly require two acts of sexual abuse during a period of 30 or more days in duration constitutes harmless error, and that the trial court did not abuse its discretion by excluding evidence of text messages and voicemail recordings left by the complainant's mother to appellant. We affirm.
In 2005, when the complainant was five years old, her mother married appellant. The complainant's mother brought with her three children—the complainant and two older sons—from her previous marriage to live with her and appellant. On November 28, 2007, the complainant's mother gave birth to twins, which are her and appellant's only children together.
One night in September 2008, as the complainant's mother was putting the complainant to bed, she noticed that her daughter was very upset. When asked why, the complainant said that she missed her biological father. Her mother did not believe it because the complainant had just spent the weekend visiting him. Her mother persisted in asking, and the complainant told her to ask appellant, but she declined. Tearfully, the complainant then told her mother that appellant had told her that his “bullet” hurt and that she needed to kiss it and rub it to make it feel better. When appellant was 19 years old, he had suffered a gunshot wound, which left bullet fragments in his abdomen. The fragments formed a hernia, slightly protruding from his abdomen. However, when her mother asked her to indicate the location of “bullet” that she was made to kiss, the complainant pointed very low on her abdomen, to the groin area. As her mother sat with her for the next few hours, the complainant revealed that appellant had made her kiss his “bullet” on numerous occasions. The complainant also recounted another occasion on which appellant had disrobed her and kissed “down there.” When her mother asked her when these things had occurred, the complainant told her it had happened during “the summer,” but she did not specify the year.
The next morning, the complainant's mother falsely told appellant that she was taking her children to the doctor. That day, she took her children, fled from her home, and called the police to report the sexual abuse. The following day, Officer DuBois, a criminal investigator specializing in crimes against children, was assigned the case. During the month that followed, appellant and the complainant's mother sent each other text messages and voicemail recordings, none of which mentions anything about the allegations of child abuse. The complainant's mother later testified that she did not reveal to appellant that she knew about the sexual abuse because she feared what he would do. In the three months after which she and her children fled their home, they lived with friends and in various shelters until appellant's arrest in November.
The Brazoria County grand jury indicted appellant on three counts, in trial cause number 60195. In Count One, the indictment alleges that appellant committed the offense of continuous sexual abuse of a child. Specifically, the indictment states that appellant committed two or more acts of sexual abuse against the complainant on or about December 1, 2007, through September 1, 2008, “which said time period being a period that was 30 or more in duration” and that the complainant was younger than 14 years of age during that period. The indictment further clarifies that each act of sexual abuse underlying the offense occurred on more than one occasion.
In Counts Two and Three, the indictment alleges that appellant engaged in two discrete acts of aggravated sexual assault against the complainant. The first discrete act—intentionally or knowingly causing his sexual organ to penetrate the complainant's mouth—is said to have occurred on or about July 1, 2008. The second discrete act—intentionally or knowingly causing his mouth to contact the complainant's sexual organ—is said to have occurred on or about August 1, 2008.
At the time of trial, in August 2009, the complainant was nine years of age. Although she testified that she did not know when the first or last acts occurred, the complainant testified that appellant started sexually abusing her during the summer when her mother was pregnant with the twins. The twins were born on November 28, 2007, placing the first sexual assault sometime during summer 2007. The complainant also testified that appellant stopped sexually abusing her when the twins were about two weeks old, placing the last sexual assault around December 15, 2007. After the sexual abuse ended, in spring 2008, appellant underwent hernia repair surgery during which doctors removed the bullet fragments from his abdomen.
The complainant testified as to the existence of at least 12 instances of sexual abuse, all except for three occurring in the laundry room. On 11 of the instances, the complainant stated that appellant instructed her to kiss and lick his “bullet.” In the beginning, the complainant would close her eyes. Later on, appellant told her she could open her eyes. She testified that what she referred to as his “bullet” was in fact his sexual organ, not the bullet fragments, which at the time still protruded from his abdomen. While testifying, the complainant drew a picture of appellant's sexual organ, which she described as looking like a jellyfish. This drawing was shown to the jury. The complainant also testified that by “lick” and “kiss” she meant that she had to put her mouth around his sexual organ. In general, each of these instances lasted approximately one minute. During a few instances, he would stop when she asked him to, but during other instances, he would continue.
The complainant testified that during an instance in the laundry room, she accidentally scraped appellant's sexual organ with her teeth. Appellant reacted by telling her to not do that so much. Subsequently, he instructed her not to bite. During another instance in the laundry room, she said that she did not like the taste. Appellant got some cake frosting and rubbed it on his sexual organ; he told her to lick it off, which she did.
The complainant testified, describing three instances in the master bedroom. During one instance, appellant informed her that he could make a substance come out of his sexual organ but that she would have to help. He again had her lick it, and after couple minutes, he told her to back off, which she did. She witnessed appellant ejaculate. She described his ejaculate as “yellow stuff,” looking like “pee.” The complainant testified that this was the only instance when a substance came out of appellant's sexual organ.
The complainant described a second instance in the master bedroom, which occurred around the end of the summer. Appellant disrobed her and licked her sexual organ with his tongue for one or two minutes until she asked him to stop, which he did. The complainant stated that this was the only instance on which he licked her sexual organ.
The complainant testified that during a third instance in the master bedroom, she was in appellant's bed when he instructed her to lick and kiss his sexual organ. However, they both heard the complainant's eldest brother calling for her. Her brother's voice grew louder as he approached the master bedroom. Appellant hid the complainant under the covers before her brother reached the master bedroom. The complainant's brother also testified to the same event, describing it as occurring around 8:30 p.m. on a school night and explaining he was responsible for getting her ready for bed because they both had school the next day. After searching the rest of the house, the complainant's brother entered the master bedroom and asked appellant if he had seen the complainant. Appellant said that he did not know where she was. After the complainant's brother left, appellant told the complainant he was kidding, and he let her go. A moment later, the complainant's brother saw her walk past his bedroom door on the way to her bedroom.
The jury found appellant guilty of Count One, continuous sexual abuse of the complainant. Pursuant to the trial court's instruction, the jury did not reach the question of guilt on Counts Two and Three, which were lesser included offenses of Count One.1
In his first two issues, appellant contends that the evidence is legally and factually insufficient to sustain his conviction for continuous sexual assault of a child. Specifically, appellant challenges the element that requires proof that at least two acts of sexual abuse occurred over a period of at least 30 days.
Appellate courts review legal and factual sufficiency challenges using the same standard of review. Green v. State, No. PD–1685–10, 2011 WL 303818, at *1 (Tex.Crim.App. Jan. 26, 2011) (per curiam) (); Ervin v. State, 331 S.W.3d 49, 52–56 (Tex.App.-Houston [1st Dist.] 2010, pet. filed) (...
To continue reading
Request your trial
-
Rodriguez v. State
...the shooting of Renteria; and, on appeal, we must defer to that resolution in conductingour sufficiency review. See, e.g., Smith v. State, 340 S.W.3d 41, 48-49 (Tex.App.--Houston [1st Dist.] 2011, no pet.) (the jury could have reasonably reconciled an ambiguity in witness's testimony in suc......
-
Wishert v. State
...acts of sexual abuse that occurred during a period that was thirty or more days in duration." Michell , 381 S.W.3d at 561 ; see Smith v. State , 340 S.W.3d 41, 48 (Tex. App.—Houston [1st. Dist.] 2011, no pet.). Here, Appellant only challenges the sufficiency of the evidence to support the d......
-
Prestiano v. State
...than 14 years of age, regardless of whether the person knew the child's age. See TEX. PENAL CODE § 22.021(a)(1)(B), (a)(2)(B) ; Smith v. State , 340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The uncorroborated testimony of the child is sufficient, standing alone, to suppo......
-
Balderas v. State
...cases tread the borderline between reasonable inference and speculation. The issue was recently before the Texas Court of Criminal Appeals. Smith, Turner, and Lewis were recently considered by the Fourteenth District Court of Appeals in Houston. Pelcastre v. State, 654 S.W.3d 579, 587 (Tex.......