Opinion
No. 05-10-01642-CR
07-19-2012
GAYNOR SMITH, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Modified; Opinion Filed July 19, 2012.
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-00138-P
OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
Appellant Gaynor Smith pleaded not guilty to a charge of indecency with a child by contact and waived his right to a jury trial. The trial court convicted him, found an enhancement paragraph true, and sentenced appellant to mandatory life in prison. On appeal appellant raises three issues arguing that the evidence was legally insufficient to support his conviction and that the trial court erred when it admitted into evidence written statements from appellant and the complainant. We resolve appellant's issues against him, modify the trial court's judgment to correct a clerical error, and affirm the judgment as modified. Background
The complainant, D.B., was 12 years old at the time of trial. D.B. testified that she has known appellant for a long time because he was the boyfriend of her mother's friend, Paula Pryor. D.B.'s mother and Pryor were close friends and Pryor would occasionally babysit D.B. overnight at Pryor's house. D.B. testified that on the night of the offense she spent the night at Pryor's house. D.B.'s mother and Pryor's daughter went out that night. D.B. slept on one side of the "L-shaped couch" and Pryor and Pryor's granddaughter slept on the other side. Appellant slept on the floor. When D.B. awoke during the night she was lying on her side facing toward back of the couch. She noticed that her pants and underwear were pulled down to her knees and appellant was behind her facing the same direction. She could tell he did not have any pants on because she could feel his leg and his penis against her body. D.B. felt appellant touch her vagina with his hand and was shocked:
Q. Was-what was the rest of his body doing? What about, was he touching you any other place?D.B. was scared. She climbed over appellant, got up off the couch, went into the restroom, and cried. She then went into another room and watched television until her mother returned. She told her mother what happened and her mother took her home and asked her to "write it down, what happened."
A.Yes.
Q.Where was that?
A.My private part.
Q.With what?
A.Huh?
Q.What part of his body was touching you?
A.His hand.
Q.So his hand was touching your privates?
A.Yes.
Q.Okay. When you say "privates" are we talking about your vagina?
A.Yes.
Q.And when he's touching you there, is he-does he say anything?
A.No.
Q.Is he moving his hand?
A.Yes.
Q.How is he moving his hand? Is it up and down or-he's just moving it?
A.Uh-huh.
Q.He's not saying anything when he's touching your private?
A.No.
Q.What is going through your mind when he's doing this?
A.I was in shock.
Pryor also testified for the State. She confronted appellant after talking to her daughter. Appellant initially denied that anything happened, but after he was arrested, he called her and admitted that he got on the couch with D.B. and "tried to put his penis on her."
Police officer Emilio Henry with the child abuse unit of the Dallas police department testified that he interviewed appellant at police headquarters. Appellant was already at the police station registering as a sex offender and Henry told him he was under arrest and took him upstairs. Only appellant and Henry were in the interview room and the interview was not recorded. Henry read appellant his Miranda rights and had appellant sign his initials next to the "five warnings" on his "Miranda card." Appellant initially denied the allegations but later confessed to "everything." Henry asked appellant to make a voluntary written statement, which was admitted into evidence. Among other things, appellant's written statement said, "I admit I tried to take [D.B.'s] pants down, rub her vagina, and then attempt to try to put my penis in her." Henry testified that he did not make any threats against or promises to appellant, and that appellant appeared to have normal use of his mental faculties.
First Issue
In his first issue appellant argues that the evidence is legally insufficient to support his conviction.
Standard of Review
When we review a challenge to the legal sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
Applicable Law
A person commits the offense of indecency with a child by contact if the person engages in sexual contact with a child younger than 17 years of age with the intent to arouse or gratify the person's sexual desire. Tex. Penal Code Ann. § 21.11(a) & (c)(1) (West 2011). "Sexual contact" includes "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child." Id. § 21.11(c)(1).
Analysis
Appellant argues that the State's evidence was legally insufficient to prove the element of contact because (1) although appellant "may have intended some type of sexual encounter with the complainant," D.B. was "mistaken as to what actually occurred on the couch" because she "was frightened, 'in shock,' and emotionally upset by [a]ppellant's actions on the couch," (2) in appellant's written statement, he said only that he "tried to rub" D.B.'s vagina, and (3) Pryor did not testify that appellant "ever told her that he touched [D.B.'s] sexual organ with his hand, as alleged in the indictment." We disagree with appellant. D.B. testified unequivocally that appellant touched her vagina with his hand. The testimony of a child victim alone is sufficient to support a conviction for a sexual offense. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2011); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd).
Having reviewed all of the evidence under the appropriate standard of review, we conclude that the evidence is sufficient to support appellant's conviction.
We resolve appellant's first issue against him. Second and Third Issues
In his second issue appellant argues that the trial court erred when it denied his motion to suppress and admitted his written statement into evidence. More specifically, appellant argues that "the custodial interrogation was conducted in such an accusatory manner that the written statement was not the product of a free and unconstrained choice of [a]ppellant." In his third issue appellant argues that the trial court erred when it admitted D.B.'s written statement into evidence for the limited purpose of considering the following part of one sentence: ". . . I felt him behind me and he was to[u]ching my private part and his finger in there a little bit . . . ." More specifically, appellant argues that the statement considered by the trial court was inadmissible because Texas Rule of Evidence 801(e)(1)(B) did not apply. In response, the State argues, in part, that any error in admitting the written statements was harmless because they were cumulative of other evidence. We agree with the State.
Erroneously admitted evidence "will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling." Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)), cert. denied, 131 S. Ct. 3030 (2011). In other words, error in the admission of evidence may be rendered harmless when "substantially the same evidence" is admitted elsewhere without objection. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any error was harmless in light of "very similar" evidence admitted without objection).
Here, D.B. testified without objection that appellant touched her vagina. As a result, any error in the admission of the written statements is harmless. We resolve appellant's second and third issues against him.
Judgment Modification
In its appellee's brief, the State asks this Court to modify the trial court's judgment to correct the "Statute for Offense." Specifically, the State notes that the judgment indicates that appellant was convicted under "22.01 Penal Code" (Assault), but should state "21.11 Penal Code" (Indecency with a Child). This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). We modify the judgment to change the notation under "Statute for Offense" from "22.01 Penal Code" to "21.11 Penal Code."
Conclusion
We resolve appellant's issues against him. We modify the trial court's judgment and affirm the trial court's judgment as modified.
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101642F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GAYNOR SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01642-CR
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 00138-P).
Opinion delivered by Justice Lang-Miers, Justices O'Neill and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to change the notation under "Statute for Offense" from "22.01 Penal Code" to "21.11 Penal Code."
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered July 19, 2012.
ELIZABETH LANG-MIERS
JUSTICE