Opinion
No. 10-18-00335-CR
12-18-2019
BRYAN AUSTIN BROOKS, Appellant v. THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas
Trial Court No. 2016-1198-C2
MEMORANDUM OPINION
In three issues, appellant, Bryan Austin Brooks, challenges his convictions for aggravated sexual assault of a child and indecency with a child by contact. See TEX. PENAL CODE ANN. § 21.11, 22.021 (West 2019). Because we overrule all of Brooks's issues on appeal, we affirm.
I. BACKGROUND
In the instant case, Brooks was charged in a seven-count indictment with five counts of aggravated sexual assault of a child and two counts of indecency with a child by contact. Brooks pleaded "not guilty" to the charged offenses, and the case proceeded to trial.
At the conclusion of the trial, the jury found Brooks guilty on all counts and assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice for each of the five counts of aggravated sexual assault of a child and twenty years' confinement for both of the counts of indecency with a child by contact. The trial court ordered that the imposed sentences run concurrently. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, Brooks challenges the sufficiency of the evidence supporting his conviction in one count of aggravated sexual assault of a child ("Count 3") and one count of indecency with a child by contact ("Count 7"). Specifically, Brooks contends that the evidence is not sufficient to establish that he placed his penis in the child victim's mouth and that he caused the hand of the child victim to touch his genitals, especially in light of the child victim's denial at trial that these incidents happened. Brooks does not challenge his convictions in the remaining five counts.
A. Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
B. Aggravated Sexual Assault of a Child
In Count 3 of the indictment, Brooks was charged with the offense of aggravated sexual assault of a child. Specifically, Count 3 alleged that Brooks "intentionally or knowingly cause[d] the mouth of [A.M.], a child who at the time was younger than six (6) years of age, to contact the sexual organ of the Defendant." Under section 22.021(a)(1)(B)(i) of the Penal Code, the State must prove beyond a reasonable doubt that Brooks intentionally or knowingly "cause[d] the mouth of a child to contact the anus or sexual organ of another person, including the actor." See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v).
On appeal, Brooks contends that the evidence is insufficient to support the allegation in Count 3 because, at trial, the child victim, A.M, denied any contact between Brooks's penis and her mouth. Indeed, in her testimony, A.M., who was four years old at the time of the incident, denied that Brooks ever had her touch his body. However, Dr. Soo Battle, a board-certified pediatrician specializing in child-sexual-abuse exams, sponsored State's Exhibit 3, which is her written report of the sexual-abuse-exam she conducted on A.M. on May 16, 2016. Recounting her report, Dr. Battle testified that A.M. told her that Brooks "pushed it in my throat. He made me choke." Upon further questioning by Dr. Battle, A.M. circled the penis on an anatomical drawing to clarify that Brooks pushed his penis in her throat and that it made her choke.
Viewing the evidence in the light most favorable to the verdict, the jury could rationally conclude that Brooks intentionally or knowingly caused A.M.'s mouth to contact his sexual organ. See id.; see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33. We therefore hold that the evidence is sufficient to support Brooks's conviction for aggravated sexual assault of a child in Count 3. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33.
And to the extent that A.M's trial testimony conflicts with the statements she made to Dr. Battle during the child-sexual-abuse exam, we must presume that the jury resolved the conflict in favor of the prosecution and therefore defer to that determination. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008) (noting that because the resolution of conflicting testimony is within the province of the factfinder, appellate courts must defer to the jury's resolution of conflicts in the evidence); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref'd) ("An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge."). Accordingly, we overrule Brooks's first issue.
C. Indecency With a Child by Contact
In Count 7 of the indictment, Brooks was charged with indecency with a child by contact. Specifically, Count 7 alleged that Brooks intentionally or knowingly caused A.M., "a child younger than seventeen (17) years of age, to engage in sexual contact by causing the said [A.M.] to touch the genitals of the Defendant, by the means of the hand of [A.M.]."
A person commits the offense of indecency with a child by contact if he engages in "sexual contact" with a child younger than seventeen years of age. TEX. PENAL CODE ANN. § 21.11(a)(1). The Penal Code's definition of "sexual contact" includes the "touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person" with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(2). The specific intent to arouse or gratify the sexual desire of any person, as required by section 21.11(c), can be inferred from the defendant's conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio 2013, no pet.).
With regard to this allegation, Brooks once again relies on A.M.'s trial testimony, whereby she denied that Brooks ever had her touch his body. However, in her child-sexual-abuse exam, A.M. told Dr. Battle that, when she was four years old, Brooks "made me touch his body with my hand, but I didn't want to. And she said it was with clothes on that he tried to make her touch his body with her hand." A.M. then recalled that Brooks "made his body shake. His hand was shaking it." Dr. Battle understood that "his body" referred to Brooks's penis because A.M. pointed to the penis on the drawing when asked to clarify which part Brooks was shaking with his hand. While discussing this topic, A.M. recalled that "white stuff came out" and that Brooks put the "white stuff" in the trash.
Viewing the evidence in the light most favorable to the verdict, the jury could rationally conclude that Brooks intentionally or knowingly engaged in "sexual contact" by causing A.M.'s hand to touch his penis with the intent to arouse or gratify his sexual desire. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(2); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33. We therefore hold that the evidence is sufficient to support Brooks's conviction for indecency with a child by contact in Count 7. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(2); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2781; Zuniga, 551 S.W.3d at 732-33.
And, once again, we note that, to the extent that A.M's trial testimony conflicts with the statements she made to Dr. Battle during the child-sexual-abuse exam, we must presume that the jury resolved the conflict in favor of the prosecution and therefore defer to that determination. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Lancon, 253 S.W.3d at 706; Render, 316 S.W.3d at 859. Accordingly, we overrule Brooks's second issue.
III. THE STATE'S EXPERT WITNESS AND "THE RULE"
In his third issue, Brooks asserts that the trial court erred by allowing the State's expert, Dr. William Lee Carter, to remain in the courtroom while A.M. testified, where the State made no showing that his presence was essential to presenting their case. In making this argument on appeal, Brooks relies on "The Rule," as expressed in Texas Rule of Evidence 614. See TEX. R. EVID. 614.
To preserve error for appellate review, a complaining party must make a timely and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must correspond or comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref'd). "Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review." Wright, 154 S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that an issue was not preserved for appellate review because appellant's trial objection "does not comport with" the issue he raised on appeal).
Prior to A.M.'s testimony, Brooks's defense counsel lodged the following objection:
We're going to object because all his testimony will serve to do is—is to try to prove [A.M.'s] testimony to be more right than wrong. The jury has the perfect capability of judging her testimony. They've heard all of the testimony before. They've had it reinforced time and again. I believe the jury is the—the group to judge that testimony and not Dr. Carter. It's bolstering.
As shown above, defense counsel did not object to Dr. Carter's presence in the courtroom during A.M.'s testimony under Texas Rule of Evidence 614. See TEX. R. EVID. 614. Rather, defense counsel lodged a bolstering objection. Because Brooks's complaint on appeal does not comport with the objection made at trial, we cannot say that Brooks has preserved anything in this issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Dixon, 2 S.W.3d at 273; Wright, 154 S.W.3d at 241. Accordingly, we overrule Brooks's third issue.
IV. CONCLUSION
Having overruled all of Brooks's issues on appeal, we affirm the judgments of the trial court.
JOHN E. NEILL
Justice Before Chief Justice Gray, Justice Davis, and Justice Neill
Affirmed
Opinion delivered and filed December 18, 2019
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