Opinion
07-22-00119-CR
01-27-2023
JUSTIN EDWARD GILMAN, APPELLANT v. STATE OF TEXAS, APPELLEE
Do not publish.
On Appeal from the 432nd District Court of Tarrant County, Texas Trial Court No. 1620246D, Honorable Ruben Gonzalez, Jr., Presiding.
Before QUINN, C.J., and PARKER and DOSS, JJ.
MEMORANDUM OPINION
Brian Quinn, Chief Justice.
Appellant Justin Edward Gilman appeals his conviction for indecency with a child by sexual contact. He maintains that the trial court erred by admitting testimony from another child victim of appellant, testimony of the mother of the victim in the instant offense, and testimony from another witness who was improperly designated an outcry witness. He also challenges the sufficiency of the evidence to support his conviction. We affirm.
Because this appeal was transferred from the Second Court of Appeals, we are obligated to apply its precedent in the event of a conflict between the precedents of that court and this court. See TEX. R. APP. P. 41.3.
Background
Though mother was aware that appellant was currently on parole in the spring of 2019, she began a romantic relationship with him. Months later, appellant moved into the home mother shared with her four children, including daughters TC and OC, ages nine and seven, respectively. A short time later, TC reported to her school counselor that she did not feel safe and did not like what was happening at her house. She also reported appellant's touching of her to her mother in late October 2019, but no details were provided. During that conversation, OC briefly entered the room and announced that appellant had also touched her. That resulted in appellant's arrest.
The State charged him with multiple counts of indecency with a child. The testimony at trial included that of another nine-year-old child, JF, who revealed similar instances of abuse by appellant. Before finding appellant guilty of touching OC (but not TC), the jury also heard from both TC and OC, their mother, and two outcry witnesses.
Second Issue: Sufficiency of the Evidence
Because this issue would afford appellant the greatest relief should we sustain it, we address the sufficiency of the evidence first. See Mixon v. State, 481 S.W.3d 318, 322 (Tex. App.-Amarillo 2015, pet. ref'd). Appellant focuses his challenge on the element of intent. That is, he contends that the State failed to prove he touched OC with the specific intent to arouse or gratify his sexual desires. See TEX. PENAL CODE ANN. § 21.11(c) (noting that as an element of the offense).
In assessing the legal sufficiency of the evidence to support a criminal conviction, reviewing courts must consider the evidence in a light most favorable to the jury's verdict, Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018), and determine whether it and reasonable inferences therefrom would permit a rational juror to find the essential elements of the crime beyond a reasonable doubt. Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019). We apply the standard here and add that the testimony of a victim of a sexual offense alone is sufficient to support a conviction for indecency with a child by sexual contact. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (uncorroborated testimony of victim is sufficient to support conviction for sexual offense if victim was seventeen years of age or younger at the time of the offense); Chasco v. State, 568 S.W.3d 254, 258 (Tex. App.-Amarillo 2019, pet. ref'd).
"The specific intent required for the offense of indecency with a child may be inferred from a defendant's conduct, his remarks, and all of the surrounding circumstances." Weaver v. State, No. 02-21-00081-CR, 2022 Tex.App. LEXIS 5324, at *22 (Tex. App.-Fort Worth July 28, 2022, no pet.) (mem. op., not designated for publication) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981)). Conduct alone may be sufficient to infer intent. See Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.-Fort Worth 1997, no pet.).
Here, OC testified that appellant touched her "bottom" and "private place" on different occasions. She was six or seven at the time. Once, it occurred after the child entered her mother's bed and lay between mother and appellant. Appellant slid his hand under her pajama bottoms and touched around the hole where she urinated, according to OC. The child also testified that, on another occasion, he entered her bedroom as she attempted to sleep and placed his hands under her pajamas and touched the area "outside" where she "pooped." Though she could not remember the details, the child also recalled appellant talking to her about not telling anyone. Other evidence before the jury revealed he had acted similarly with two other children, that is, touched their private parts.
Appellant's conduct, its repetition, its occurrence when others slept, and his suggestion she not talk to others about it provides circumstantial evidence of his intent. From it, a jury could infer, beyond reasonable doubt, that he touched the child with the intent to arouse his sexual desires. So, we overrule appellant's insufficiency issue.
First Issue: JF's Testimony Concerning Extraneous Offense
Next, we address appellant's complaint about the admission of JF's testimony. Upon doing so, we overrule it as well.
Per article 38.37 of the Texas Code of Criminal Procedure, the trial court may admit "[e]vidence of extraneous offenses or acts" against a child who is not the victim in the case being tried. See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2(a)(1)(C), (b); see also Wilson v. State, No. 02-17-00280-CR, 2018 Tex.App. LEXIS 9772, at *13-16 (Tex. App.-Fort Worth Nov. 29, 2018, no pet.) (mem. op., not designated for publication). That is, it allows the State to introduce evidence "that the defendant has committed a separate offense . . . for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant." TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2(b). Yet, before its admission, the trial court must hold a hearing to determine if the evidence will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt. Id. art. 38.37 § 2-a. "Adequate" under § 2-a means legally sufficient. Romano v. State, 612 S.W.3d 151, 159 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd). And, in applying the legal sufficiency test, we defer to the factfinder's ability to weigh inconsistencies in and assess the credibility of witness testimony in deciding whether to believe it. See Kent v. State, No. 07-16-00150-CR, 2017 Tex.App. LEXIS 12143, at *10 (Tex. App.-Amarillo Mar. 8, 2017, no pet.) (mem. op., not designated for publication) (citing Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)). In other words, indicia such as inconsistency or credibility go to the weight of the evidence, not its admissibility under article 38.37, § 2-a. See Romano, 612 S.W.3d at 159 (involving article 38.37, § 2 and rejecting the proposition that the testimony was inadmissible because "(1) Alex did not tell his mother what happened in the hot tub, and (2) the grand jury did not indict [appellant] for his conduct towards Alex").
Evidence of the sexual abuse appellant committed upon JF was presented to the trial court at a hearing outside the presence of the jury. Thereafter, the trial court determined that it was adequate to support a finding by the jury that, beyond a reasonable doubt, appellant committed the offense. Appellant maintains that the trial court's finding was erroneous. His initial focus lies on JF's hesitance to recognize him as the one who touched her. Nevertheless, the child iterated that the reason for her being in court that day involved "Justin" touching her inappropriately. So too did she state that appellant looked like the Uncle "Justin" who committed the act. Other evidence indicated that she continually peered toward appellant while being questioned about the incident. And, when asked at whom she was looking, she pointed to appellant and said "Justin." If nothing else, the latter indicates she knew about whom she spoke and that person was appellant. Given it and the other mentioned circumstances, we conclude that the trial court's decision fell within the zone of reasonable disagreement. See Romano, 612 S.W.3d at 158 (stating that the trial court's ruling is reviewed under the standard of abused discretion and discretion is abused when it falls outside the zone of reasonable disagreement). That is, the tenor of her testimony would allow a jury to find, beyond reasonable doubt, that appellant was her assailant. The child's hesitance did not render her testimony inadmissible; it merely created a circumstance which the jury could consider in assessing the weight to assign it.
Appellant also suggested that the testimony should have been excluded because it was unnecessary. The State already proffered evidence of both a prior conviction for sexual assault and the assault upon TC, according to him. Yet, he does not cite any authority conditioning admission of article 38.37 evidence on need. Nor do we have the authority to rewrite the statute to impose such a condition.
Third Issue: Improper Admission of Mother's Testimony
Appellant next contends that the trial court erred in allowing OC's mother to testify as an outcry witness. We overrule the issue.
The purported outcry involved mother's reiteration of what OC said upon overhearing TC reveal to mother what appellant did to TC. Mother testified that OC said: "Oh, he did that to me, too." In response to mother so testifying, appellant said nothing; that is, he did not object. Having withheld an objection, he failed to preserve his complaint for review. See Childs-Payton v. State, No. 07-20-00051-CR, 2021 Tex.App. LEXIS 3926, at *10-11 (Tex. App.-Amarillo May 19, 2021, no pet.) (mem. op., not designated for publication); TEX. R. APP. P. 33.1.
In concluding that he waived the complaint, we are aware of the pretrial discussion had between the parties and court involving the identity of outcry witnesses. The conversation resulted in the parties apparently agreeing to the use of several such witnesses. Two (Marchand and Hardwick) were to discuss the specifics of what OC and TC told them. Yet, neither party agreed that mother was precluded from testifying about what OC said. Indeed, neither they nor the court discussed that utterance or whether it was admissible evidence. It having gone unmentioned during the pretrial discussion, we reject appellant's insinuation that he preserved his complaint at that time. TEX. R. EVID. 103(b) (stating that "[w]hen the court hears a party's objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal").
Fourth Issue: Improper Outcry Testimony
Appellant's final issue also concerns outcry. He believes that Marchand should not have been allowed to reiterate what OC told her about appellant having "fat fingers." His "fat fingers" allegedly enabled OC to identify appellant as her assailant. Appellant objected to Marchand mentioning that. He did so because OC had "already said that it was Justin Gilman, it was with his hand, both to the mother and to the SANE nurse examiner. So I don't think that's sufficient to create a supplemental outcry ...." We overrule the issue.
The reason we reject appellant's complaint comes from his acknowledgement that others had already identified appellant as OC's assailant. They included OC herself and two other witnesses. In other words, mentioning appellant's "fat fingers" as a means of identifying appellant was cumulative of other evidence identifying appellant as the assailant, to which evidence appellant did not object. And, as said by our sister court, "cumulative testimony from an outcry witness is harmless when the child victim also testifies about the abuse." Petty v. State, No. 02-21-00130-CR, 2022 Tex.App. LEXIS 7299, at *17 (Tex. App.-Fort Worth Sept. 29, 2022, pet. filed) (mem. op., not designated for publication).
Having overruled all issues before us, we affirm the trial court's judgment.