No. 05-08-00691-CR
Opinion Filed January 7, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-66424-M.
Before Justices MOSELEY, BRIDGES, and MURPHY.
MEMORANDUM OPINION
Opinion By Justice MURPHY.
A jury convicted Rodney Antawyn Cunningham of aggravated sexual assault and the trial judge assessed punishment, enhanced by a prior conviction, at fifty years' confinement. In his first two points of error, Cunningham asserts legal and factual insufficiency. In three additional points, he claims the trial court erred in failing to properly instruct the jury regarding two prior convictions, in allowing the State to impeach him with a prior conviction for violation of a protective order, and in failing to include an instruction on the lesser-included offense of indecency with a child. In a sixth point, Cunningham asserts the judgment contains errors in the enhancement paragraphs. We modify the judgment to correct the errors and, as modified, affirm.
Background
The assault occurred in August 1995, but was not reported to the police until May 2006. The complainant, Cunningham's former step-daughter, testified the assault occurred in the house where she lived with Cunningham, her mother, and two sisters. Complainant was thirteen at the time. Her mother was at work, her middle sister was outside playing with a friend, and her youngest sister was visiting another family member. Complainant testified she was walking to the front door, attempting to go outside to play with her sister and friend, when Cunningham "grabbed" her by the arm and "threw" her on her back onto the floor. Cunningham then covered her face with a pillow, "pulled [her] pants down," got on top of her, "rubb[ed]" on her with his hands, "pulled his from out of his shorts," "touched [her] with his penis on [her] vagina," and "tried to put his penis inside of [her]." The complainant testified she was crying and "squirming trying to get out." The incident lasted "way longer than five minutes" and was "terrible" and "disgusting." "After [Cunningham] seen that [she] was fighting," he apologized immediately and asked the complainant "not to say anything." The complainant testified she "was in shock . . . that [Cunningham] would do something like that," because they had a good relationship. She was still crying when she went outside and told her sister what had happened. She planned on telling her mother and called out to her mother when her mother got off the bus from work. Her mother apparently did not hear her, and Cunningham came out of the house before she could get to her mother. Complainant went back to play and did not mention the incident again until six years later when she told a boyfriend that Cunningham had "tried to molest [her]." "Almost two years" after telling the boyfriend, complainant also told her "God sister." At that time, the incident still had never been reported to the police. Complainant testified she avoided Cunningham after the incident but did not think her mother noticed. Although she was close to her mother and had "several opportunities," she did not mention the incident to her mother until May 2006. Complainant explained she told her mother at that time because Cunningham had asked to see her and she did not want to see him. Complainant testified she had hoped to be left "alone with the whole issue" and did not want to notify the police or to testify at trial. Complainant's mother testified that she separated from Cunningham in September 1995 because of his infidelity. She did not recall seeing any difference in complainant's relationship with Cunningham prior to the separation but saw a "peculiar look on [complainant's] face" when she told the complainant of a visit she had with Cunningham in May 2006. Complainant's mother testified she was "distraught" to learn what had happened and contacted the police. Testifying in his defense, Cunningham denied the allegations, claiming he did not live at complainant's house in August 1995. He presented a theory that the assault was fabricated because complainant's mother was jealous of appellant's new wife and he had rebuffed the mother's efforts to get back together. Sufficiency of the Evidence
We review challenges to the sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, we consider all the evidence in a neutral light. Laster, 275 S.W.3d at 518. Although we defer to the jury's findings, we may override the verdict to "prevent manifest injustice." Id. We will conclude the evidence is factually insufficient if (1) the supporting evidence is "too weak" to support the fact finder's verdict or (2) considering conflicting evidence, the fact finder's verdict is against the great weight and preponderance of the evidence. Id. If we conclude the evidence is factually insufficient, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly outweighs the verdict. Id. Based on the indictment in this case, the State had to prove beyond a reasonable doubt that Cunningham contacted or penetrated the complainant's sexual organ with his sexual organ and, at the time, the complainant was younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii), (2)(B) (Vernon Supp. 2009). Because of the complainant's age at the time of the assault, the State could prove this with her testimony alone. Tex. Crim. Proc. Ann. 38.07 (Vernon 2005). In his first point of error, Cunningham asserts the evidence of contact or penetration is legally insufficient because the complainant's testimony was "inconsistent and contradictory" and no other evidence existed to confirm her allegations. Cunningham relies on inconsistencies between the complainant's testimony at trial and a statement she gave to the investigating officer. Those inconsistencies, acknowledged by the complainant at trial, concerned the reason she was in the house at the time of the assault and what Cunningham was doing when he grabbed her. Cunningham also relies on complainant's failure to disclose the assault to her mother for almost eleven years, despite being "close" and having "numerous opportunities" to do so. Cunningham maintains this evidence was "significant" because it showed the complainant "could not keep her story straight." That the complainant's testimony may have been "inconsistent and contradictory," however, does not render the evidence legally insufficient; the jury is assumed to have resolved any inconsistencies in the testimony in favor of the verdict. See Hooper, 214 S.W.3d at 13. Moreover, lack of other evidence to confirm complainant's allegations does not render the evidence legally insufficient, because the State could prove the assault with complainant's testimony alone. See Tex. Code Crim. Proc. Ann. art. 38.07. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could conclude beyond a reasonable doubt that Cunningham sexually assaulted the complainant when she was thirteen years old. We overrule Cunningham's first point. We also overrule Cunningham's second point of factual insufficiency. Cunningham asserts the evidence is factually insufficient for the same reasons as legal insufficiency and also because of his own testimony. Although Cunningham relies not only on the complainant's "inconsistent and contradictory" testimony but also on his own testimony, the jury was free to disbelieve his testimony. See Laster, 275 S.W.3d at 525 (jury is final judge of witnesses' credibility). By returning a guilty verdict, the jury necessarily determined the complainant was credible and Cunningham was not. Viewing the evidence in a neutral light, we cannot conclude the verdict is manifestly unjust, and we will not disturb the jury's finding. Lesser-Included Offense Charge
Cunningham's third point assigns error to the trial court's failure to charge the jury on the lesser-included offense of indecency with a child. We follow the "cognate-pleadings" test enunciated in Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) to determine if the trial court should have given a jury charge on a lesser-included offense. Hall, 225 S.W.3d at 535. The first step is a question of law and requires us to compare the elements of the offense as they are charged with the statutory elements of the lesser offense; we do not consider the evidence to be produced at trial. Id. at 535-36. If we determine the lesser offense is included, we then review the record to determine if some evidence exists to support the instruction-that is, whether the record contains some evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. at 536. Cunningham asks us to apply a "cognate-evidence" approach, rather than the pleadings standard; under the evidence approach, we would consider the facts presented at trial as part of our initial analysis. See id. at 526 (under cognate-evidence analysis, court includes facts adduced at trial). Cunningham maintains the Hall pleadings analysis is necessary only when a defendant alleges he did not receive fair notice of the offenses for which he may be convicted. Cunningham asserts notice is not an issue and we can consider the facts from trial. In Hall, however, the court specifically rejected the "cognate-evidence" approach in concluding the sole test for determining the first step is the pleadings approach; we are bound by that opinion. See id. at 535 (pleadings approach is sole test for determining in first step whether party entitled to lesser-included offense instruction); Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.-Houston [1st] 2002, pet. ref'd) (intermediate court of appeals bound by decisions of state's highest criminal court). As a preliminary matter, Cunningham did not specifically request a lesser-included offense in the jury charge. As part of his motion for instructed verdict, Cunningham argued that "if we go to Court's charge, I would again renew and urge that it is possible based on those facts . . . that it would be some type of lesser included. . . . We second move for a reconsideration in possibly putting a lesser included based on the testimony of [complainant]." The record does not show a specific request for a lesser-included offense and Cunningham references only the quoted language in support of his argument. Assuming, without deciding, Cunningham preserved his complaint, we turn to the Hall analysis to determine whether the trial court erred in not including indecency with a child as a lesser-included offense. Looking first at the indictment and statutory elements of aggravated sexual assault, the facts needed to establish the offense were that (1) Cunningham (2) intentionally or knowingly (3) caused the contact or penetration (4) of the complainant's sexual organ (5) by his sexual organ (6) and at the time the complainant was younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (iii), (2)(B). The elements of indecency with a child that could be part of aggravated sexual assault are that (1) the defendant (2) engaged in sexual contact with the child or (3) caused the child to engage in sexual contact. Id. § 21.11(a)(1) (Vernon Supp. 2009). "Sexual contact" requires proof of (1) any touching, including through clothing (a) by a person of any part of the child's genitals or (b) of any part of the child's body with any part of the genitals of a person and (2) the commission of which occurred with the intent to arouse or gratify the person's sexual desire. Id. § 21.11(c). Although the offense of indecency specifically requires as part of "sexual contact" an intent to arouse or gratify the person's sexual desire and the offense of aggravated sexual assault does not, the court of criminal appeals recently reaffirmed that such an intent is included in aggravated sexual assault. See Evans v. State, No. PD-0147-09, 2009 WL 4827507, at *2 (Tex. Crim. App. Dec. 16, 2009) ("all of the elements of indecency with a child are included in aggravated sexual assault of a child") (citing Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998); Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987)). The court further concluded that "indecency with a child is a lesser-included offense of aggravated sexual assault of a child when both offenses are predicated on the same act." Id. at *4. Because our analysis here involves only one alleged act, we must follow Evans and turn to the second Hall step. The second step in Hall requires a review of the record to determine whether some evidence exists that would permit a jury rationally to find that a defendant is guilty only of the lesser-included offense. Hall, 225 S.W.3d at 536. The record here shows both the aggravated sexual assault charge and the lesser offense of indecency with a child contain the same elements-sexual contact. Here, both offenses would be predicated on one alleged act-sexual contact. On these facts, we conclude a jury, if it found Cunningham guilty, could not rationally exclude aggravated sexual assault and find him guilty only of indecency. Accordingly, the trial court did not err in failing to instruct the jury on the lesser-included offense. We overrule Cunningham's third point. Limiting Instruction
In his fourth point, Cunningham complains that the trial court failed to instruct the jury that his prior convictions for aggravated assault and violation of a protective order based on underlying family violence could be considered only for purposes of impeachment. He also asserts the court erred in giving the limiting instruction that it gave and he was egregiously harmed as a result. To the extent Cunningham argues the jury should have been charged to consider his two prior convictions for impeachment purposes only, we conclude no error occurred. A trial judge has no obligation to submit a limiting instruction if a defendant fails to request the instruction at the time the evidence is offered. Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (failure to request limiting instruction at time evidence is presented renders evidence admissible for all purposes and relieves trial judge of obligation to include instruction). Cunningham made no request for a limiting instruction at the time the evidence was tendered. Instead, during his direct examination following the trial court's ruling in a sub rosa proceeding, Cunningham admitted and discussed both the conviction for protective order violation as well as the aggravated assault conviction. Absent a request, the trial court had no obligation to limit consideration of Cunningham's own evidence for impeachment only. See id.; see also Tex. R. Evid. 105(a) (when evidence is admissible for one purpose, but not all purposes, trial court must give, if requested, instruction restricting evidence to its proper scope). The charge did contain an instruction, however, limiting use of the two prior convictions to the question of Cunningham's "intent" or "knowledge" in connection with the assault. Cunningham made no objection to inclusion of such instruction. Because Cunningham did not object to such instruction at the time of trial, we may reverse only if the record shows he suffered egregious harm as a result of its inclusion. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004) (un-objected-to jury charge error reversible only if egregious harm). Egregious harm deprives a defendant of a fair and impartial trial and must be actual, not theoretical, as determined in light of the charge, state of the evidence, arguments of counsel, and any other relevant information. See Ngo v. State, 175 S.W.3d 738, 750 n. 48 (Tex. Crim. App. 2005). Cunningham argues he suffered egregious harm because the charge instructed the jury to consider the prior convictions for "their substantive value"-his intent and knowledge in connection with the assault-rather than impeachment purposes. Cunningham emphasizes in this argument that the State's case was based upon the complainant's delayed outcry testimony, the State emphasized the extraneous convictions in its final argument, and the jury at one point "was deadlocked 10 guilty and 2 not guilty." Cunningham maintains the instruction "had to have been confusing to the jury since the [convictions] were not admitted for that purpose" and the jury "very well may have used this impeachment evidence for the improper purpose of determining [his] intent or knowledge and thereby his guilt." Cunningham fails to consider that, when he testified to the convictions and did not request a limiting instruction, the convictions became admissible for all purposes, including intent and knowledge, and no "improper purpose" could exist. See Williams, 275 S.W.3d at 230. Even assuming the instruction allowed the jury to consider the prior convictions for an "improper purpose," Cunningham's concern that the jury "had to have been confus[ed]" and "very well may have used this impeachment evidence for the improper purpose of determining . . . intent or knowledge" is nothing more than speculation; Cunningham has shown no actual harm. Viewing the entire record, we conclude Cunningham has failed to show egregious harm and was not denied a fair and impartial trial. The record reflects the trial court correctly charged the jury with respect to the elements of the offense, the burden of proof, and the jury's role as to credibility and weight of the evidence. Additionally, no emphasis was placed on the "intent" or "knowledge" elements of the offense; Cunningham denied the sexual assault charged, and the contested issue at trial was whether the offense ever occurred. We overrule Cunningham's fourth point. Impeachment by Protective Order Violation
In his fifth point, Cunningham complains that the court erred by allowing evidence of his conviction for violation of a protective order for impeachment because the State did not show the probative value outweighed the prejudicial effect. As discussed above, the evidence of the 2008 conviction was introduced by Cunningham and no limiting instruction was requested or given. Following the sub rosa hearing, Cunningham testified and introduced the evidence of both convictions complained about on appeal. When a defendant preemptively introduces a prior conviction during his direct examination, he waives any complaint about the admission of such evidence. See Ohler v. United States, 529 U.S. 753, 760 (2000); Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). Accordingly, we overrule Cunningham's fifth point of error. Modification of Judgment
The State concedes, and we agree, that the judgment contains errors in the enhancement paragraphs as Cunningham alleges in his sixth point. The judgment recites that the State alleged two enhancement paragraphs and that Cunningham pleaded true to both. The State, however, alleged a single enhancement paragraph to which Cunningham pleaded "not true." Accordingly, we sustain this point and modify the judgment to correct these errors. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). As modified, we affirm the trial court's judgment.