Opinion
No. 10-17-00049-CR
11-22-2017
REGINALD DONNELL THOMAS, Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas
Trial Court No. 14-05525-CRF-85
MEMORANDUM OPINION
In three issues, appellant, Reginald Donnell Thomas, challenges his conviction for aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B)(1) (West Supp. 2016). Specifically, Thomas contends that: (1) the evidence supporting his conviction is legally and factually insufficient; and (2) the trial court committed reversible error by failing to grant his motion for mistrial. Because we overrule all of Thomas's issues on appeal, we affirm the judgment of the trial court.
I. LEGAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Thomas argues that the evidence is insufficient to support his conviction because the record contains little or no evidence on a necessary element—that penetration occurred. We disagree.
A. Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether 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, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard enables the fact finder to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ("We resolve inconsistencies in the testimony in favor of the verdict."). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
B. Discussion
Under section 22.021(a)(1)(B)(i) of the Penal Code, the State must prove beyond a reasonable doubt that Thomas intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). As noted above, Thomas specifically challenges the penetration element of the charged offense.
Here, Jane Riley, a pediatric nurse/practitioner, testified that she performed a sexual-assault exam on the child victim, J.T. During the exam, Nurse Riley took notes regarding the abuse. J.T. stated that, since she turned nine years old, "my dad [Thomas] puts his private part in my bottom every day when my mom is gone." When Nurse Riley asked for more clarification, J.T. stated that Thomas put his private part where her poop comes out and that she hated it. J.T. told Nurse Riley that Thomas's private part got under her shorts and that she felt it while pointing to her anal area. J.T. further alleged that the abuse last transpired the day before the sexual-assault exam.
Nurse Riley later described her physical exam of J.T., which revealed abnormalities. These abnormalities included redness around J.T.'s labia, thick discharge from her vagina, and a very red hymen. Nurse Riley stated that these abnormalities could be consistent with sexual assault or with a sexually-transmitted disease, vaginosis, or simply poor hygiene. J.T. tested negative for sexually-transmitted diseases. And according to Nurse Riley, J.T.'s anal area appeared to be normal, though she emphasized that evidence of penetration of the anus may not be seen in a physical examination.
During her testimony, J.T. testified about the abuse, and with regard to penetration, she stated that "[h]e [Thomas] would just push inside a little bit." On cross-examination, J.T. confirmed that Thomas touched her bottom with his private part and that it "went in a little bit."
A child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd); see also Grizzle v. State, No. 10-14-00204-CR, 2015 Tex. App. LEXIS 376, at *5 (Tex. App.—Waco Jan. 15, 2015, pet. ref'd) (mem. op., not designated for publication).
The courts will give wide latitude to testimony given by child victims of sexual abuse. The victim's description of what happened need not be precise, and the child is not expected to communicate with the same level of sophistication as an adult. Corroboration of the victim's testimony by medical or physical evidence is not required.Cantu, 366 S.W.3d at 776 (internal citations omitted).
Based on the foregoing, we conclude that J.T.'s testimony was sufficient to establish the penetration element of the charged offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Cantu, 366 S.W.3d at 775-76; Tear, 74 S.W.3d at 560; see also Grizzle, 2015 Tex. App. LEXIS 376, at *5. Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have concluded beyond a reasonable doubt that Thomas committed the offense of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. Accordingly, we overrule Thomas's first issue.
II. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his second issue, Thomas invites us to engage in a factual-sufficiency review and argues that the evidence supporting his conviction is factually insufficient. We note that the Court of Criminal Appeals has determined that factual sufficiency no longer applies in criminal cases. See Brooks, 323 S.W.3d at 902, 912 (concluding that there is "no meaningful distinction between the Jackson v. Virginia legal sufficiency standard and the . . . factual-sufficiency standard, and these two standards have become indistinguishable" and holding the following: "As the Court with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are overruled"); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Kiffe v. State, 361 S.W.3d 104, 109-10 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (rejecting a constitutional challenge to the single sufficiency standard in criminal cases under the factual-conclusivity clause and stating that, "[a]lthough an intermediate appellate court's decision shall be conclusive on all questions of fact brought before them on appeal or error, the Texas Court of Criminal Appeals has the authority to determine questions of law, including the standard of review that an intermediate appellate court must use in conducting factual review." (internal citations omitted)); see also Sanders v. State, No. 10-14-00211-CR, 2015 Tex. App. LEXIS 4704, at *2 (Tex. App.—Waco May 7, 2015, pet. ref'd) (mem. op., not designated for publication). Therefore, because we are bound to follow the Court of Criminal Appeals, we only apply the Jackson sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense. See Brooks, 323 S.W.3d at 902, 912; see also Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). Accordingly, we reject Thomas's challenge to the single standard of review announced in Brooks. We overrule Thomas's second issue.
III. THOMAS'S MOTION FOR MISTRIAL
In his third issue, Thomas asserts that the trial court abused its discretion by denying his motion for mistrial. Specifically, Thomas complains that J.T.'s testimony that Thomas used a knife during the purported sexual encounters is clearly prejudicial and impossible to withdraw the impression produced on the minds of the jurors.
A. Applicable Law
We review the denial of a motion for mistrial under an abuse-of-discretion standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this standard, we uphold the trial court's ruling as long as the ruling is within the zone of reasonable disagreement. Id. "'A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for "a narrow class of highly prejudicial and incurable errors." Id.; see Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its discretion to declare a mistrial when, due to the error, "an impartial verdict cannot be reached" or a conviction would have to be reversed on appeal due to "an obvious procedural error." Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567. Therefore, the appropriate test for evaluating whether the trial court abused its discretion in overruling a motion for mistrial is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. "The Mosley factors are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of conviction absent the misconduct." Id.; see Mosley, 983 S.W.2d at 259.
B. Discussion
During direct examination, J.T. volunteered for the first time that Thomas prevented her from leaving by holding a knife to her head during the abuse. Defense counsel objected to the extraneous offense and requested that the trial court instruct the jury to disregard that statement. The trial court instructed the jury to disregard the complained-of answer from J.T. Defense counsel then moved for a mistrial, which the trial court denied.
The Court of Criminal Appeals has stated that testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard unless it is so clearly calculated to inflame the minds of the jury and is of such a nature as to suggest the impossibility of withdrawing the harmful impression from the jury's mind. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see also Smith v. State, No. 10-11-00317-CR, 2013 Tex. App. LEXIS 9919, at *8 (Tex. App.—Waco Aug. 8, 2013, no pet.) (mem. op., not designated for publication). We are not convinced that J.T.'s one-time, fleeting testimony about the extraneous offense of using a knife during the abuse is so inflammatory as to undermine the efficacy of an instruction to disregard. See, e.g., Keele v. State, No. 04-02-00132-CR, 2003 Tex. App. LEXIS 4097, at **7-8 (Tex. App.—San Antonio May 14, 2003, pet. ref'd) (mem. op., not designated for publication) ("Under these circumstances, we hold the trial court did not abuse its discretion in denying Keele's motions. The reference to the extraneous offense of attempted rape was unresponsive and fleeting; the trial court promptly sustained Keele's objections; and the effect of the inadmissible testimony was undoubtedly dissipated during the innocuous questioning that occurred between defense counsel's objections and his request for a mistrial."). This is especially so considering that we are to presume that jurors follow a court's instruction to disregard testimony, absent some proof from the record that the jury did not or could not follow such an instruction. See Thift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see also Butler v. State, No. 10-13-00430-CR, 2015 Tex. App. LEXIS 135, at *14 (Tex. App.—Waco Jan. 8, 2015, pet. ref'd) (mem. op., not designated for publication). No such proof exists in the record. Moreover, the parties did not emphasize or elicit additional information regarding the extraneous offense, and this one-time reference was over shadowed by J.T.'s other testimony about the abuse. All of this serves to dissipate or lessen any possible prejudicial effect.
The record also reflects that the State was unaware of the allegation regarding the knife.
And finally, we note that we have already concluded that the evidence supporting Thomas's conviction is sufficient. In other words, in light of J.T.'s testimony and the corroborating testimony of Nurse Riley, in particular, the certainty of conviction was high absent the reference to the extraneous offense.
Therefore, based on the foregoing, we cannot say that an application of the Mosley factors to this case establishes that the trial court abused its discretion in denying Thomas's motion for mistrial. See Archie, 221 S.W.3d at 699-700; see also Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259. Accordingly, we overrule his third issue.
IV. CONCLUSION
Having overruled all of Thomas's issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed November 22, 2017
Do Not Publish
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