Opinion
No. 05-15-01269-CR
12-07-2016
GARRY RAY DIXON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1457891-T
MEMORANDUM OPINION
Before Justices Fillmore, Brown, and O'Neill
Opinion by Justice O'Neill
The Hon. Michael J. O'Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
A jury convicted appellant Garry Ray Dixon of indecency with a child, and the trial court assessed his punishment at five years' confinement. In two issues, appellant contends the evidence is insufficient to support his conviction and the trial court erred by overruling his objections to the State's closing argument. On our own motion, we modify the trial court's judgment to reflect that appellant's conviction requires him to comply with sex offender registration procedures and that the complainant was nine years old at the time of the offense. As modified, we affirm the trial court's judgment.
Background
Appellant lived with his longtime girlfriend, Julie Lee. The two frequently took care of Julie's grandchildren, the complainant and her younger brother, while the children's mother worked. The children were close to Julie and appellant; they thought of appellant as a grandfather. The children also had friends in appellant's neighborhood, with whom they played regularly when in their grandmother and appellant's care.
The conduct made the basis of this case occurred in the living room of appellant's home on a day the children were staying with Julie and him. According to the complainant, her grandmother was in the shower at the time. Appellant and the children were watching television. The complainant was lying down on the couch when appellant came and lay down behind her. Appellant took a large pillow from behind him and placed it in front of the complainant. Then he put his hand between the complainant's shorts and underwear and fondled her vagina. The complainant stated that appellant's touching felt like ants crawling on her; she demonstrated the nature of the touching with her hand. When the complainant attempted to move away, appellant used the pillow to push her back down. During the course of appellant's conduct, one of the children's playmates, A.C., knocked on the door. The complainant was able to move appellant's arm aside and get up to answer the door.
We summarize the complainant's version of the incident using her trial testimony and her forensic interview, the text of which was introduced in its entirety at trial.
The complainant went outside to play with A.C. and eventually told A.C. what had happened. The next day, another playmate, M.C., came to the house and spent time with the complainant, and the complainant told M.C. about appellant's conduct as well. M.C. shared the story with her own mother, who notified the complainant's mother. When she was confronted by her mother, the complainant related that appellant had touched her vagina, used the pillow to hide his conduct, and pushed her down when she tried to move away. The complainant's mother called the police and was directed to take the complainant to the Dallas Children's Advocacy Center. The complainant was interviewed there by Kim Skidmore, a forensic interviewer. The complainant's mother and Skidmore both testified at trial to the complainant's report of appellant's conduct.
Both young girls, A.C. and M.C., testified at trial. --------
Appellant was arrested and was eventually tried for indecency with a child. He testified in his own defense at trial, denying that he ever touched the complainant improperly or held her down. Julie testified for appellant as well, stating that she had never witnessed appellant behave inappropriately toward any child and that sometimes the complainant did not tell the truth.
The jury found appellant guilty of indecency with a child. The trial court sentenced him to five years' confinement. He appeals.
Sufficiency of the Evidence
In his first issue, appellant contends the evidence is insufficient to support his conviction. A person commits indecency with a child if he engages in sexual contact with a child younger than seventeen years of age. TEX. PEN. CODE ANN. § 21.11(a)(1) (West 2011). In this context, "sexual contact" includes touching a child's genitals, including touching through clothing, if the act is committed with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). When an appellant challenges the sufficiency of the evidence supporting the jury's verdict, we review all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). When the record supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Id. at 525-26.
Appellant first argues that "the testimony of the witnesses is in conflict rendering the evidence insufficient." Appellant points to testimony, primarily from A.C. and M.C., that appears to be in conflict with the complainant over issues such as whether the complainant's brother was inside or outside when the alleged conduct took place, who answered the door when the girls knocked at appellant's door, whether the siblings were watching television on the floor when a friend arrived, and whether the complainant stopped to put her shoes on before running outside to join her friend. Our review of the record persuades us the witnesses were describing at least two different occasions as they testified concerning coming to visit the complainant, so we do not see inconsistencies where appellant does. Nor do we see inconsistencies within the complainant's own report of the incident as to any material fact.
Appellant points to Julie's testimony that she had never seen appellant act inappropriately with any child and that sometimes the complainant did not tell the truth. Finally, appellant underscores his own testimony, in which he denied inappropriately touching the complainant at any time.
The question of the credibility and weight to be attached to the testimony of each of these witnesses was solely for the jury. Merritt, 368 S.W.3d at 525. In this case, the jury resolved any inconsistencies in the evidence and any credibility issues against appellant, and we defer to those determinations. See id. The child complainant's testimony describing the offense is sufficient to support the conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (West Supp. 2016); see also Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd) ("The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault."). The testimony is sufficient even if it contains conflicting facts. See Hampton v. State, No. 05-15-00509-CR, 2016 WL 3397691, at *4 (Tex. App.—Dallas June 13, 2016, no pet.) (child victim's testimony, although conflicting as to number of times it occurred, sufficient to support conviction for aggravated sexual assault).
Here, the complainant testified that, when she was nine years of age, the appellant touched her genitals through her clothing. See TEX. PEN. CODE ANN. § 21.11(a)(1), (c)(1). No conflicting testimony, from the complainant or any other witness, can defeat out of hand the sufficiency of the child victim's testimony concerning her age or the sexual contact she described.
Appellant argues, though, that the State failed to offer any evidence that he committed the act charged with the intent to arouse or gratify his sexual desire. The requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Billy v. State, 77 S.W.3d 427, 429 (Tex. App.—Dallas 2002, pet. ref'd). The complainant testified that appellant put his hand through an opening in her shorts and moved it in a way that "felt like ants crawling" on her. She testified further that when she attempted to get up from the couch, he held her down with the pillow he was using as a shield from view. If the jurors believed the complainant, they could infer directly from appellant's actions that he performed the contact described with the intent to arouse or gratify his sexual desire. See Billy, 77 S.W.3d at 429 (jury could infer intent to arouse or gratify sexual desire when child testified accused put his hand inside her undergarment and "moved his hand around for a couple of minutes"). Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to establish that appellant touched the complainant's genitals with intent to arouse and gratify his sexual desire.
We conclude the evidence is sufficient to support appellant's conviction for indecency with a child. We overrule appellant's first issue.
Improper Jury Argument
In his second issue, appellant argues the trial court erred by overruling appellant's objection to the State's closing argument. His objection relates to the following exchange:
[The Prosecutor]: There's two ways you can go with these cases, this is how it works. Either call it an accident, you don't have to put on a defense. But if you do choose to put on a defense, and they chose to lodge a defense, they came up here and testified, two choices, two ways to go. Either call it an accident. Oh, my hand accidently slipped. I certainly didn't mean to do that but oh my goodness I certainly apologize, it's not what I intended. I was horsing around or wrestling or something like that. Or you call her a liar.Appellant contends the trial court incorrectly overruled both of his objections: first to the "misstatement of the law" that appellant was required to choose one of two defenses in this case, and second to the implication that appellant had the burden to prove any aspect of the charge against him.
[Defense Counsel]: Objection, Your Honor, that's a misstatement of the law.
The Court: Closing argument, the objection is overruled.
[The Prosecutor]: Or you call 9-year-old, 10-year-old [complainant] a liar. And that's the way they went, that's what they did with this. That dignified little girl who came up here and spilled it to you, told you everything, all about her life, all about her papa, all about how it felt. She cried. They called her a liar. That's their choice, that's the way they went with it. Okay?
And so the problem with that is though, they lodged a defense and they went that way, they forgot to give you a motive.
[Defense Counsel]: Objection, Your Honor, that's not the law. We didn't have to provide a motive.
The Court: Overruled.
We review the trial court's ruling on an objection to improper jury argument for an abuse of discretion. Whitney v. State, 396 S.W.3d 696, 703-04 (Tex. App.—Fort Worth 2013, pet. ref'd). Proper jury argument generally falls into four well-defined categories of discussion: (1) a summation of the evidence, (2) reasonable deductions from the evidence admitted for consideration by the jury, (3) a rejoinder to argument by opposing counsel, and (4) a plea for law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992).
Two Ways to Defend the Charge
At the outset, we question whether the first argument quoted above actually involved a statement, let alone a misstatement, of the law. We understand the prosecutor to be relating to the jury the two general ways accused persons can defend against a charge involving sexual contact with a child: (1) by acknowledging the conduct alleged did occur, but it was was merely an accidental contact, or (2) by asserting the conduct alleged did not occur, i.e., the complainant is not telling the truth. This is not a legal argument; the prosecutor simply described the possible defenses to cases prosecuted under the applicable statute. Moreover, the language objected to was the prosecutor's introduction to her summation of the evidence in this case, evidence that included appellant's denial that the conduct alleged had occurred. See id. The trial court did not abuse its discretion in overruling appellant's objection to a "misstatement of the law."
No Evidence of Motive to Lie
Similarly, we question appellant's characterization of the second objected-to argument. The prosecutor's discussion of motive was not tied to an inappropriate burden imposed on appellant to prove any aspect of the offense with which he was charged. Instead, we understand the prosecutor to be arguing that the evidence did not show a motive for the complainant to lie.
However, regardless of our understanding of the prosecutor's arguments, there are at least two reasons why we must overrule this issue. First, appellant failed to preserve his complaint involving the motive argument. The State correctly points out that this argument was raised more than once in the initial portion of the State's argument. Indeed, as the State began its argument, the prosecutor stated the following:
Yesterday a little girl did something that no little girl should ever have to do. She came into this room in front of 12 strangers, had to describe for you her very first sexual experience. She had to describe for you what took place in a home where she felt most comfortable, a man that she trusted. She had absolutely no motive to lie. We're not allowed to go back there and invent things. There wasn't anything, she had no motive to lie. Not her, not her mother, no one.Appellant did not object to this argument concerning an absence of a motive for the complainant to lie. Nor did he object when the subject was raised again before the exchange quoted above or when it was raised yet again after the quoted exchange. To preserve error in jury argument, a party must object each time the offending argument is made. Kirvin v. State, 394 S.W.3d 550, 561-62 (Tex. App.—Dallas 2011, no pet.) (citing Briones v. State, 12 S.W.3d 126, 129 (Tex. App.—Fort Worth 1999, no pet.)). Because appellant failed to object to the State's other references to its argument concerning the absence of motive to lie, appellant failed to preserve error for our review.
Second, even if appellant's issue accurately characterized the State's arguments, and even if appellant's issue were preserved, we would find no fault in the State's argument. During appellant's closing argument—after the State had initially raised the no-motive-to-lie theory, but before the above-quoted exchange during which appellant objected—his counsel argued the complainant's mother, the forensic interviewer, and the detective were more interested in making a case against appellant than in "looking for the truth." Appellant's counsel suggested repeatedly the complainant was not truthful. In one example, counsel suggested to the jury that the complainant was "kind of getting pushed" and asked jurors:
What happens with kids when they're maybe not being completely truthful? If you keep pushing them do you get to the truth? That's something you have to decide happened in this case or not.The State responded to appellant's repeated suggestions by stating that the evidence did not reflect any motive for the complainant to lie. This response is properly characterized as a rejoinder to appellant's own arguments, a proper category for jury argument. See Cantu, 842 S.W.2d at 690. Accordingly, the trial court did not abuse its discretion by overruling appellant's objections.
We decide appellant's second issue against him.
Modification of the Judgment
The trial court's judgment asserts that Dixon was convicted of the offense of indecency with a child pursuant to section 21.11 of the Texas Penal Code. The judgment goes on, however, to state that "Sex Offender Registration Requirements do not apply to the Defendant" and that the age of the victim at the time of the offense was "N/A." Appellant's conviction for indecency with a child is among those defined as a "[r]eportable conviction or adjudication" for purposes of the sex offender registration statute. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A)(West Supp. 2016). As a person with a reportable conviction or adjudication, appellant is subject to the registration requirements of that program. See id. art. 62.051. In addition, appellant's offense was necessarily predicated on his conduct's involving "a child younger than 17 years of age." TEX. PEN. CODE ANN. § 21.11. The State alleged and proved that the complainant in this case was nine years old at the time of the offense. We conclude, therefore, that the trial court's judgment incorrectly states that (1) sex offender registration requirements do not apply to appellant, and (2) the complainant's age was not applicable to appellant's offense.
We have the authority to modify an incorrect judgment when the record contains the information necessary to do so. Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). This authority extends to showing the applicability of sex offender registration requirements and the age of the victim. Ruiz v. State, No. 05-12-01703-CR, 2014 WL 2993820, at *12 (Tex. App.—Dallas June 30, 2014, no pet.) (mem. op., not designated for publication); Jackson v. State, Nos. 05-12-00041, 00042, & 00043-CR, 2012 WL 5359513, at *2 (Tex. App.—Dallas Oct. 31, 2012, no pet.) (mem. op., not designated for publication). Accordingly, we modify the judgment in this case to show (1) the sex offender registration requirements do apply to appellant, and (2) the age of the victim at the time of the offense was nine years old.
Conclusion
As modified, we affirm the trial court's judgment.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 151269F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1457891-T.
Opinion delivered by Justice O'Neill. Justices Fillmore and Brown participating. Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to state the following:
(1) Sex offender registration requirements do apply to appellant; and
(2) The age of the victim at the time of the offense was nine (9) years old. As MODIFIED, the judgment is AFFIRMED. Judgment entered this 7th day of December, 2016.