Opinion
NO. 01-18-00987-CR
04-07-2020
KOLAN OLIVER JENKINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 1605903
MEMORANDUM OPINION
Kolan Oliver Jenkins was convicted of attempted sexual assault and was sentenced to 25 years' confinement.
See TEX. PENAL CODE § 22.011(a)(1), (b)(1) (sexual assault); § 15.01(a) (attempt). This was the minimum sentence available given Jenkins' criminal history. See TEX. PENAL CODE § 12.42(d).
In a single issue, Jenkins challenges the sufficiency of the evidence to support his conviction. He does not dispute he was the person who physically contacted the complainant. Nor does he argue there was insufficient evidence that the contact met the statutory definition of attempted sexual assault. He cannot: the complainant testified in detail about the assault, and there was video evidence of the encounter. Jenkins's argument is more novel. While acknowledging the State is authorized to identify a complainant by her initials in a criminal indictment, Jenkins contends the State failed—or possibly forgot—to explicitly link those initials to the testifying complainant. According to Jenkins, he was "fully justified in 'laying behind the log'" and arguing on appeal that the State's omission requires an acquittal.
See TEX. CODE CRIM. PROC. art. 21.07; see Davey v. State, 989 S.W.2d 52, 55 (Tex. App.—Dallas 1998, pet. ref'd).
We affirm.
Background
Mary Smith and her sister, Tracy Smith, stopped at a store at 1:00 in the morning. Mary was inside and Tracy was outside the store when Kolan Oliver Jenkins approached Mary and asked her to help him use the ATM machine. Mary agreed. Jenkins followed Mary to the corner of the store where the ATM machine was located. According to Mary's testimony, when they reached the machine, Jenkins grabbed her. She could feel his penis pushing against her. Jenkins was trying to lift her dress. Mary saw that Jenkins's pants were open and his penis was exposed. Mary fought to free herself from Jenkins's hold. He continued to grab at her skirt. She thought he was trying to insert his penis into her vagina and, intermittently, also trying to insert his fingers. Mary screamed for help and struggled against him. According to Mary, Jenkins managed to partially insert his finger into her vagina during the struggle. A short time after the struggle began, a nearby man saw what was happening through the store window and ran in to help. Tracy also saw what was happening and ran in to help Mary. The two were able to free Mary from Jenkins's hold and force Jenkins to the other side of the store. Meanwhile, the store attendee called the police. Jenkins was arrested and charged with attempted sexual assault.
As is our common practice, we will refer to the complainant and her family members by pseudonyms for their privacy. See Alanis v. State, No. 01-16-00797-CR, 2018 WL 2643099, at *1 n.1 (Tex. App.—Houston [1st Dist.] June 5, 2018, no pet.) (mem. op., not designated for publication); see also TEX. CONST. art. I, § 30 (providing that "crime victim has the following rights: (1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process . . . .").
The applicable portion of the indictment provided as follows:
It is further presented that in Harris County, Texas, KOLAN OLIVER JENKINS, hereafter styled the Defendant, heretofore on or about December 4, 2017, did then and there unlawfully intentionally, with the specific intent to commit the offense of Sexual Assault of M.S., hereafter styled the Complainant, do an act: to wit: attempting to penetrate the Complainant's sexual organ with his finger, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended.The offense number on the indictment was 151962517.
As the case developed, the parties requested witness subpoenas. On December 13, 2017—a little over one week after the offense, the State prepared an application to subpoena Houston Fire Department EMS records related to "M[ary] S[mith], d.o.b. [date], seen on or after 2/4/17." An offense number was specified on the subpoena—151962517—which matched the offense number on the indictment. The application for subpoena is in the clerk's record. Also in the clerk's record is the subpoena that issued to the Houston Fire Department EMS. It too lists Mary's legal name and birth date, the date of the offense, and the matching offense number. A second subpoena application and subpoena dated February 2018 are in the clerk's record as well. Both list Mary's legal name and birth date as well as the offense number.
In September 2018, the State requested witness subpoenas. One of the witnesses specified was Mary Smith. The application, which is in the clerk's record, lists her legal name, home address, and phone number. Her sister, Tracy, also was specified as a witness to be subpoenaed. Tracy's legal name, home address, and phone number are listed. The subpoenas that issued to both women are in the clerk's record. The returns stating that the subpoenas were executed are in the clerk's record, again listing Mary's full name and address, as well as Tracy's.
Thus, while the indictment listed Mary by her initials, the documents subsequently filed with the court, which Jenkins had access to, listed Mary's full legal name, date of birth, home address, and phone number. Each of those documents also listed the offense number that matched the offense number on the indictment.
The criminal trial took place in October 2018. During voir dire, the prosecutor read the indictment to the venire. After reading the phrase "the offense of sexual assault of M.S.," the prosecutor explained that "M.S. is the initials of the complainant or the victim in this case" and that "we only use their initials in charging documents in these types of cases."
After the jury was selected, the parties gave their opening statements. The State went first and, in the first sentence of the opening statement, the prosecutor said, "In the early morning hours of December 4th, 2017, this defendant, Kolan Jenkins, approached the complainant, M[ary] S[mith], pushed her against a glass, exposed his penis, put his hands up her skirt and attempted to sexually assault her." The prosecutor identified the complainant by her full legal name five additional times during the opening statement. Mary's legal first name, as told to the jury, begins with the letter "M," and her legal last name, as told to the jury, begins with the letter "S."
The first witness was the store attendee. When asked what happened that early morning, he stated that a lady began frantically screaming for help and he called the police. The 9-1-1 tape was admitted and played for the jury. The employee testified the store had surveillance video from the incident. The surveillance video was admitted and played for the jury. After the video was played, the employee confirmed that the man in the video was Jenkins.
The next witness was Officer C. King with the Houston Police Department. He responded to the 9-1-1 call. When he arrived, he interviewed "the complainant, the witnesses and also the suspect." He was asked the name of the complainant, and he answered with her full legal name. He described Mary as "very shooken up." He testified that Jenkins was there, and Jenkins's pants were still unzipped. King arrested Jenkins for attempted sexual assault.
The next witness was Officer W. Cooke with the Houston Police Department's Special Victims Division for adult sex crimes. He identified Mary by her full legal name and said he interviewed her as part of his investigation. He said Mary positively identified Jenkins in a photo array as the person who assaulted her. Her sister, Tracy, positively identified Jenkins in a photo array as well.
Investigator D. Escobar with the Houston Police Department testified next. During his testimony, he identified Mary by her full legal name. He testified Mary chose the photo of Jenkins from a photo array and stated she was "absolutely positive" he was the person who had assaulted her. The photo array was admitted into evidence. The picture of Jenkins is circled, and Mary's full legal name is written next to it. Investigator Escobar testified Mary wrote her name on the array herself.
Mary's sister, Tracy, testified next. She identified herself by her correct legal name and Mary by hers. She was in her car waiting for Mary to finish in the store. She saw Jenkins grab her sister. She grabbed a stiletto shoe from inside her car, ran into the store, and began hitting Jenkins. The video shows Tracy repeatedly striking Jenkins with the heel of her shoe. Tracy stated that a man who was nearby came into the store to help free Mary from Jenkins. When the police arrived, she gave a statement describing what had occurred.
The final State's witness was Mary Smith. She began her testimony by stating her full legal name and spelling it. The spelling of her first name began with the letter "M," and the spelling of her last name began with the letter "S." She testified she was inside the store when Jenkins asked her to help with his bank card. She agreed and led him to the ATM machine. As she walked to the machine, he grabbed her from behind. She described the assault in detail. She identified Jenkins in the courtroom as the man who attacked her. She watched the surveillance video along with the jury. She identified herself as the woman in the video.
After Mary testified, the State rested. The defense called one witness: Jenkins. Jenkins testified the encounter was a misunderstanding. He said he accidentally "stumbled into" Mary, and then she panicked and "started hitting" him. In describing what occurred, he repeatedly referred to Mary by her legal last name. In other words, he called her "Ms. S[mith]." During Jenkins's testimony, Mary's full legal name was repeated multiple times by Jenkins's attorney in phrasing his direct-examination questions. Each time, Jenkins responded with descriptions of the encounter that early morning and denials of any attempt to sexually assault "Ms. S[mith]." On cross-examination, Jenkins confirmed Mary Smith was the person he interacted with that day and further confirmed Mary was being truthful when she testified that Jenkins had asked her for help with his card. Jenkins agreed the video accurately showed the two of them.
Both sides gave closing arguments. During the State's closing, the prosecutor read from the indictment and, when she got to the phrase using Mary's initials, she said to the jury, "M.S.—you now know that's Ms. S[mith]," stating Mary's legal last name. The prosecutor repeatedly referred to Mary by her legal first name and her legal last name during closing.
The jury deliberated less than an hour and returned a verdict of guilty. The jury was told that Jenkins's applicable punishment range was between 25 and 99 years or life confinement. The jury selected a sentence of 25 years. The trial court entered a judgment of conviction with a sentence of 25 years' confinement. Jenkins appealed.
Jenkins's Theory on Appeal
In his single issue, Jenkins argues there was a "fatal variance" between the allegation of identity in the indictment and the proof offered at trial. Jenkins acknowledges he was arrested and charged with attempted sexual assault of Mary Smith. He uses her full legal name throughout his brief. He acknowledges the trial witnesses referred to Mary by her legal name. He acknowledges Mary testified in detail about the assault. And he acknowledges the prosecutor told the jury that the initials in the indictment, "M.S.," "stood for" Mary Smith. Even conceding these points, Jenkins argues the State failed to prove who "M.S." was because "[n]o witness ever testified that 'M.S.' was a pseudonym for" Mary. Nor, he points out, did the State file a "notice of use of pseudonym."
All Jenkins's arguments arise from the same factual premise—that the State never connected the initials "M.S." to the testifying complainant, Mary Smith. As Jenkins explains in his brief: "The only attempt to tie 'M.S.' to" Mary Smith "was during jury argument by the state . . . . No evidence was presented at trial that 'M.S.' and" Mary Smith "were one and the same person." Jenkins's premise is incorrect.
The initials "M.S." were linked to the testifying complainant, Mary Smith, multiple times, and the jury received a great deal of evidence supporting its finding that Jenkins attempted to sexually assault Mary Smith. First, the prosecutor told the jury during opening statement and closing statement that the initials "M.S." referred to Mary Smith. Second, Mary began her testimony by stating her full legal name and spelling out both her first and last name before describing the assault and identifying Jenkins as her assailant. When she spelled her legal name, the first name began with the letter "M," and the last name began with the letter "S." Third, the video of the assault was admitted into evidence and played for the jury. Mary identified herself as the woman in the video. Fourth, the officers testified they investigated the offense and interviewed Mary Smith as part of their investigation. They identified her as the complainant, meaning the person whom Jenkins assaulted. And, fifth, Jenkins's own testimony frequently referred to Mary Smith as "Ms. S[mith]" and acknowledged she was the person in the video. He did not dispute that Mary Smith was the person with whom he had a physical altercation; he merely disputed her characterization of that interaction. According to him, his actions were defensive only.
There were ample links established at trial between the initials "M.S." and the testifying complainant, Mary Smith. All arguments premised on the assertion there were not are rejected. This leaves one argument—that the use of Mary's initials on the indictment was a "fatal variance" that requires acquittal on appeal. We address that issue below.
Jenkins Waived Any Complaint that
Use of Initials in the Indictment Was Error
An indictment "must contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him." TEX. CODE CRIM. PROC. art. 21.02(4) But, in alleging the name of any "person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the given name and the surname." Id. art. 21.07.
Here, the State used Mary Smith's initials in the indictment. Jenkins does not identify anywhere in the record that he objected to the use of the complainant's initials or argued the practice should have been disallowed under the particular circumstances of his case. In fact, his brief asserts he was "fully justified in 'laying behind the log'" concerning that issue and waiting until the appeal of his conviction to raise it.
Without an objection to the State's use of the initials-in-lieu-of-legal-name procedure, which is specifically authorized by statute, Jenkins's complaint that the State availed itself of this procedure is waived. Id. art. 1.14(b) ("If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding."); see Grant v. State, 970 S.W.2d 22, 23 (Tex. Crim. App. 1998) (concluding that appellant waived argument that complainant's name was not adequately specified because appellant failed to object to defect, relying on Article 1.14(b)).
Even if There Were a Variance,
It Would Not Be Material to Warrant Acquittal
The materiality inquiry in a claim that a complainant's name does not match the indictment is two-fold. Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002). First, we consider whether the criminal defendant had notice of his accuser to adequately prepare his defense at trial. Id.; Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). Second, we consider whether the variation in name could subject the convicted defendant to another prosecution for the same offense. Fuller, 73 S.W.3d at 254; Gollihar, 46 S.W.3d at 257.
There is no indication in this record that Jenkins had inadequate information concerning the identity of the woman who alleged he had attempted to sexually assault her. Nor is there any indication that the use of initials in the indictment, rather than the complainant's full name, interfered with Jenkins's ability to prepare an adequate defense. The only place her initials were used was in the indictment. In all other legal filings, including the list of witnesses, the subpoena request, and the subpoena return—some dated eight months before the trial date—Mary's full legal name was provided, along with her date of birth, address, and phone number. It cannot reasonably be asserted that Jenkins did not know the identify of his accuser before trial. And Jenkins does not go so far as to make that assertion.
Nor can it reasonably be asserted that he was surprised when her full legal name was stated at trial. The State told the jury during opening statements Mary Smith's full legal name. The State said Mary would be testifying at the trial. Jenkins did not request a continuance due to newly disclosed information. He did not object, claiming surprise. He did nothing to indicate the name of the complainant was different than he anticipated.
During trial, Jenkins and his attorney referred to Mary by her legal first name and her legal last name various times. Further, Jenkins acknowledged during his testimony that Mary was the person from whom he sought help in the store at the beginning of the surveillance video. There simply is no indication of surprise.
As Jenkins describes it in his brief, he observed what he perceived was an error by the State during the trial in failing to link Mary's initials to her full legal name, and he felt justified in waiting to see if the State corrected its error. When he determined it did not, he chose a defensive strategy that involved, in his words, "laying behind the log" and raising the issue on appeal. That approach is inconsistent with a view that Jenkins's was surprised by the complainant's identity.
Nor is there a double-jeopardy concern in this circumstance. The entire record is available to protect an accused against double jeopardy in the event of a subsequent prosecution, not just the indictment. Gollihar, 46 S.W.3d at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir. 1988)). The record is replete with references to Mary Smith's full legal name, including during her own testimony when she stated and spelled her first and last name. There is no double-jeopardy concern.
Because Jenkins waived any argument against the use of initials in the indictment and the record does not support a claim of materiality, we conclude Jenkins's sufficiency arguments—based wholly on the use of initials in the indictment to identify the complainant—lack merit.
Conclusion
We affirm.
Sarah Beth Landau
Justice Panel consists of Justices Keyes, Landau, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).