Summary
holding evidence of extraneous offense admissible in indecency-with-a-child case to show, among other things, appellant's intent
Summary of this case from Martinez v. StateOpinion
No. 05-02-01771-CR.
Opinion issued April 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause No. F01-99407-I. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
OPINION
Sammy Earl Gipson appeals his indecency with a child conviction. The jury convicted appellant and sentenced him to twenty-five years' confinement. In four points of error, appellant argues the trial court erred in overruling his Batson objection, the evidence is insufficient to corroborate his extrajudicial confession or support his conviction, and the trial court erred in admitting evidence of an extraneous prior conviction. We affirm the trial court's judgment. T.B., eleven years old at the time of the offense, testified she stayed at appellant's sister's house overnight just before Christmas 2001. T.B. went to sleep in capri pants and a shirt. At some point, T.B. woke up and found appellant close behind her in the bed with his hands around her on her thigh. T.B.'s pants were unzipped in the back, and her shirt was rolled up. T.B. felt "different" and got up and went into the living room to watch television. Appellant followed T.B. into the living room and said he was sorry and asked T.B. not to say anything. Appellant's sixteen-year-old niece, D.M.G., got up to use the bathroom and heard appellant tell T.B. not to tell. As she was leaving the bathroom, D.M.G. saw T.B. crying in a corner of the living room. T.B. said she woke up, her pants were unzipped, and "she felt as if someone was touching her." She identified the "someone" as appellant. The next day, D.M.G. told her mother what she overheard and what T.B. told her. D.M.G.'s mother called T.B.'s mother, Angela Bonner, who became concerned something had happened to T.B. and paged appellant. Appellant called Bonner right away. Although appellant was hesitant at first, he admitted he touched T.B. on her breast and butt. Appellant also said he touched T.B. between her legs. Bonner called police and reported the offense. Appellant was convicted of indecency with a child, and this appeal followed. In his first point of error, appellant argues the trial court erred in overruling his Batson objection. At the conclusion of voir dire, appellant objected that the State struck two African-American venirepersons because of their race. After hearing the State's explanations for the use of its peremptory strikes, the trial court overruled appellant's objection. See Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson, there is a three-step process for evaluating an objection to peremptory strikes. See Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing of discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). The burden of production then shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. If the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. at 767. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Id. at 768. The trial court's determination on the issue of intentional discrimination is a finding of fact entitled to great deference on appeal. See Herndandez, 500 U.S. at 364-65; Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App. 1990) (op. on reh'g). In reviewing the trial court's determination, we view the record in the light most favorable to the trial court's ruling. Kemp v. State, 846 S.W.2d 289, 304 (Tex.Crim.App. 1992). We cannot reverse merely because we would have weighed the evidence differently had we been sitting as the trier of fact. Mandujano v. State, 966 S.W.2d 816, 819 (Tex. App.-Austin 1998, pet. ref'd). Rather, we reverse only if the trial court's determination is clearly erroneous. Whitsey, 796 S.W.2d at 726. A finding is clearly erroneous, even if evidence exists to support it, if our review of the record leaves us with the definite and firm conviction the trial court made a mistake. Whitsey, 796 S.W.2d at 721. After appellant made his Batson objection in this case, the prosecutor explained that she struck Juror Number Twelve, an African-American male, because he had two prior felony forgery cases from 1995 for which he was placed on deferred. The prosecutor explained she struck Juror Number Forty-one, an African-American male, because he "had a 1988 felony drug case for which he was also placed on deferred, and he also is unemployed." The prosecutor stated that the State struck all individuals with "records for theft or any adjudication." After the prosecutor made her explanations, the trial court concluded appellant had not met his burden of showing racial discrimination, and appellant did not object or present further argument. In his brief, appellant argues there is no evidence in the record to support the State's assertions concerning the criminal histories of the veniremembers in question. However, as the party making the Batson challenge, appellant had the burden to show that the explanation given by the State was merely a pretext for discrimination. Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim. App. 2002). A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal to his claim. Id. Here, the State presented race-neutral reasons for its use of peremptory strikes, and appellant failed to show that the explanations given were merely a pretext for racial discrimination. See id. Under these circumstances, the record in this case does not leave us with a firm conviction that a mistake has been made. See Whitsey, 796 S.W.2d at 721. We conclude the trial court's decision to overrule appellant's Batson challenge was not clearly erroneous. We overrule appellant's first point of error. In his second and third points of error, appellant argues the evidence is legally and factually insufficient to support his conviction. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The factfinder may believe or disbelieve all or any part of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). As appellant argues, an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction; there must exist other evidence showing that a crime has in fact been committed. Rocha v. State, 16 S.W.3d 1, 4 (Tex.Crim.App. 2000). This other evidence is commonly referred to as the "corpus delicti." Id. This other evidence need not be sufficient by itself to prove the offense: all that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence. Id. Appellant argues there is insufficient evidence to corroborate his extrajudicial confession. We disagree. The record shows T.B. went to sleep in capri pants and a shirt. At some point, T.B. woke up and found appellant close behind her in the bed with his hands around her on her thigh. T.B.'s pants were unzipped in the back, and her shirt was rolled up. T.B. said "she felt as if someone was touching her," meaning appellant. Appellant later said he was sorry and asked T.B. not to say anything. D.M.G. overheard appellant asking T.B. not to tell. We conclude this evidence was legally and factually sufficient to corroborate appellant's extrajudicial confession and to establish that he touched T.B. on her breast, as charged in the indictment. See Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 11; Rocha, 16 S.W.3d at 4-5. We overrule appellant's second and third points of error. In his fourth point of error, appellant argues the trial court erred in admitting evidence of his prior extraneous conviction of indecency with a child. The trial court's decision to admit or exclude evidence will be upheld on appeal absent an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim. App. 1990). Evidence of a person's other crimes, wrongs, or acts is not admissible for the purpose of proving action in conformity therewith. Tex. R. Evid. 404(b). Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. Here, the State presented the testimony of Emily Lackey, a criminal investigator in the child abuse unit of the Dallas county district attorney's office. Lackey testified that she was appellant's probation officer from April 1997 until August 1998. At that time, appellant was on probation for indecency with a child by contact. Lackey testified appellant admitted that he fondled the breast of his thirteen-year-old stepdaughter, L.C., while she was sleeping. Appellant objected that this evidence was inadmissible under rule 404(b). Prior to this testimony, appellant's counsel had asked T.B.'s mother whether "This is some big mistake?" The trial court overruled appellant's objection to the evidence of his prior offense, concluding the evidence was admissible to show appellant's opportunity, intent, knowledge, and lack of mistake, and its prejudicial effect did not substantially outweigh its probative value. Having reviewed the evidence, we cannot conclude the trial court abused its discretion in making this determination. See Montgomery, 810 S.W.2d at 391. We overrule appellant's fourth point of error. We affirm the trial court's judgment.