Opinion
No. 05-03-01677-CR
Opinion Filed October 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MA-03-71012-H. Affirm.
Before Justices MOSELEY, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
Barbara Ann Jackson appeals her conviction for public lewdness. After a jury found appellant guilty, the trial court sentenced appellant to three days in jail and assessed a $300 fine. Appellant brings three points of error contending the evidence is legally and factually and sufficient and that the trial court erred in admitting hearsay testimony in violation of the Confrontation Clause. We affirm appellant's conviction. Undercover police officers at an adult theater observed appellant touching a man's penis. As the man appellant was touching left the theater, the police stopped him and learned that his name was Frederick Edwards. The State charged appellant with public lewdness by sexual contact "by any touching of the genitals of Frederick Edwards" with intent to arouse or gratify Edwards's sexual desire in a public place. At trial, the State did not call Edwards to testify. Instead, one of the officers testified that the name of the man appellant touched was Frederick Edwards. Appellant objected to this testimony on the grounds that (1) the officer had no personal knowledge of the man's name, (2) the testimony was hearsay, and (3) the testimony violated appellant's right of confrontation. See Tex. R. Evid. 602, 802; Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004). The trial court overruled her objections. On appeal, appellant argues the trial court erred in overruling her objections to the officer's testimony of the name of the man she touched and that this error made the evidence legally and factually insufficient because objected-to hearsay has no probative value. All of appellant's arguments are premised on the assertions that (1) the identity of the person she touched was a necessary element of the offense, and (2) the failure to prove the person's identity would create a material variance between the charging instrument and the proof at trial. We conclude these premises are incorrect and, therefore, all of appellant's arguments lack merit. Under the federal sufficiency standard of review, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001) (quoting In re Winship, 397 U.S. 358, 364 (1970)). "This standard measures evidentiary sufficiency against the 'substantive elements of the criminal offense as defined by state law.'" Fuller v. State, 73 S.W.3d 250, 252 (quoting Jackson v. Virginia, 443 U.S. 307, 324 n. 16 (1979)). State law, in relevant part, defines "element of the offense" as the forbidden conduct with the required culpability. Id. at 252-53; see Tex. Pen. Code Ann. § 1.07(a)(22)(A), (B) (Vernon Supp. 2004-05). State law defines the relevant substantive elements of public lewdness as knowingly engaging, in a public place, in sexual contact, that is, any touching of any part of the genitals of another person with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. §§ 21.01(2), 21.07(a) (Vernon 2003). State law does not define the name of the person touched as a substantive element of the offense. Cf. Fuller, 73 S.W.3d at 253 (victim's name is not substantive element of injury to an elderly individual). Thus, the State did not have to prove the name of the person appellant touched for the evidence to be legally sufficient under the federal sufficiency standard of review. Cf. id. (failure to prove victim's name as alleged in indictment did not make evidence insufficient under Jackson). Under the state sufficiency standard of review, we consider whether there is a material variance between the charging instrument and the proof at trial. Id. at 253; Gollihar, 46 S.W.3d at 257. A variance is material if it "deprived the defendant of notice of the charges or . . . subjects the defendant to the risk of later being prosecuted for the same offense." Fuller, 73 S.W.3d at 253. Allegations in the charging instrument giving rise to immaterial variances may be disregarded. Id.; Gollihar, 46 S.W.3d at 257. In this case, appellant was on notice of whom she was accused of touching, and nothing shows she was surprised by the proof at trial. Likewise, any variance from the State's failure to prove the name of the person touched would not subject appellant to another prosecution for the same offense. Cf. Fuller, 73 S.W.3d at 253 (failure to prove name of victim as alleged in indictment did not create a material variance). Thus, the State did not have to prove the name of the person appellant touched as alleged in the information for the evidence to be legally sufficient under the state sufficiency standard of review. Turning to appellant's points of error, she contends in her first point that the trial court erred in overruling appellant's objections to the officer's testimony of Edwards's name. Appellant asserts the officer had no personal knowledge of the name, his testimony about the name was hearsay, and the trial court's admission of the evidence deprived her of her constitutional right of confrontation. Assuming for purposes of this opinion that the trial court erred in admitting the testimony, we must disregard any nonconstitutional error unless it affected appellant's substantial rights. Tex.R.App.P. 44.2(b). Even constitutional error is harmless, however, if we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. Tex.R.App.P. 44.2(a). In this case, the error, if any, was harmful only if it was necessary for the State to prove the name of the person appellant touched. If the trial court had sustained appellant's objections and barred the State from allowing the officer to testify to the name of the person with whom appellant engaged in sexual contact, appellant could still have been convicted because the identity of the person she touched was not a necessary element of the State's proof. Likewise, nothing in the record shows proof of the man's name had any effect on the punishment assessed. Accordingly, we conclude that any error in the trial court's overruling appellant's objections to the officer's testimony that the name of the person appellant touched was Frederick Edwards did not affect appellant's substantial rights. Likewise, we conclude beyond a reasonable doubt that the error, if any, did not contribute to appellant's conviction or punishment. We overrule appellant's first point of error. In her second and third points of error, appellant challenges the legal and factual sufficiency of the evidence to support her conviction. Both legal and factual sufficiency are reviewed under well-established standards of review. See Jackson, 443 U.S. at 319; Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). Appellant argues the evidence is legally and factually insufficient to support her conviction because the only evidence of the name of the person she touched was objected-to hearsay having no probative value. See Chambers v. State, 711 S.W.2d 240, 247 (Tex.Crim.App. 1986) (objected-to hearsay has no probative value and is treated as no evidence in sufficiency review). However, as discussed above, the identity of the person appellant touched was not a necessary element of the offense and did not have to be proved for the evidence to be legally sufficient under the federal sufficiency review. Likewise, the failure to prove the identity of the person appellant touched did not create a material variance between the allegations in the information and the proof at trial. After reviewing all the evidence under the legal and factual sufficiency standards of review, we conclude the evidence is legally and factually sufficient. We overrule appellant's second and third points of error. We affirm the trial court's judgment.