Opinion
No. 05-16-00265-CR No. 05-16-00266-CR
07-11-2017
MARCUS LINDSEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F14-60874-Q , F15-00039-Q
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Schenck
Marcus Devore Lindsey appeals from convictions for possession of child pornography and sexual performance by a child. We modify the trial court's judgments and affirm them as modified. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL AND PROCEDURAL BACKGROUND
Using the pseudonym Akime, appellant sent a Facebook friend request to C.M., who was thirteen years old at the time. Through Facebook's private messaging feature, appellant told her he had a younger brother named Tayshawn and asked for C.M.'s information to contact her on Kik, another social media application that allowed users to send private messages to each other. Appellant then posed as Tayshawn to send messages to C.M. As both Akime and Tayshawn, appellant exchanged messages with C.M. for a few days before he asked her to be in a romantic relationship with him. C.M. agreed to be in a romantic relationship with Akime, but she rejected Tayshawn.
C.M. continued to exchange messages with both of appellant's false identities for approximately a week before appellant as Akime accused C.M. of cheating on him with Tayshawn and threatened to post screenshots of conversations between C.M. and Tayshawn on C.M.'s public Facebook page, which would have "gotten [C.M.] in trouble at home." C.M. apologized, but appellant as Akime told her that "[t]he only thing that [would] save [her]" would be if she sent him lurid photographs depicting her in various poses as he directed and met him in person. C.M. reluctantly complied with his orders for photographs.
Once C.M. sent Akime the demanded photographs, appellant as Akime ordered C.M. to go the following Saturday to an apartment to have sex with a "friend" of his. He threatened C.M. that if she did not have sex with his friend, he would publish the photographs C.M. had sent, along with the screenshots of her conversations with Tayshawn. He also threatened C.M. that if she told anyone about their arrangement, he would post the nude photographs everywhere and not remove them. But when that Saturday arrived, C.M. told Akime she could not go to the apartment, and appellant retaliated by publicly posting the nude photographs she sent him. Appellant as Akime threatened that if she did not go to the apartment later that weekend, she could lose her mother and underscored the threat by sending C.M. a picture of a gun. That night, C.M. told her mother everything that had happened, and C.M.'s mother called the police.
The investigating officers used the phone number and Facebook and Kik information appellant provided C.M. to identify appellant as a suspect and obtain a search warrant for appellant's apartment. During the search of appellant's apartment, the police found a cell phone that appellant admitted belonged to him. That cell phone contained Akime's Facebook account, Tayshawn's Kik account, and the photographs C.M. had taken and sent to Akime. Appellant admitted to police that he had used the two false online identities and had demanded C.M. send him photographs of her breasts.
A grand jury charged appellant by indictment with possession of child pornography and sexual performance by a child younger than 14 years old. TEX. PENAL CODE ANN. §§ 43.25, 43.26 (West 2016). The child pornography indictment alleged in relevant part that appellant possessed visual material of a child engaging in sexual conduct, "to-wit: the lewd exhibition of the female breast below the top of the areola." The sexual performance indictment alleged in relevant part that appellant had induced C.M. to engage in sexual conduct and a sexual performance, "to-wit: the lewd exhibition of the female breast below the top of the areola." The State notified appellant of its intent to enhance his punishment in each case with a prior felony forgery conviction. In a consolidated jury trial on both cases, appellant pleaded not guilty to the charged offenses, and a jury found him guilty. Appellant entered pleas of true to each enhancement paragraph. The trial court sentenced appellant to twenty years' confinement in each case with the two sentences to run concurrently. Appellant filed a motion for new trial in each case, but both were overruled.
DETECTIVE'S TESTIMONY
In his first issue, appellant argues the trial court abused its discretion in overruling his objection and permitting the investigating detective to testify that a photograph was "lewd."
I. Standard of Review
The admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537-38 (Tex. Crim. App. 2002). If there is evidence supporting the trial court's decision to admit the opinion, there is no abuse and we must defer to that decision. Id. at 538. Even when the trial court offers an erroneous reason for its decision, if the decision is nevertheless substantially correct on any theory of law applicable to the case, it will be sustained. See id. This is especially true with regard to the admission of evidence, which is a matter generally left to the discretion of the trial judge. See id.
II. Applicable Law
Under Texas Rule of Evidence 702, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. TEX. R. EVID. 702. A non-expert, lay witness may provide opinion testimony pursuant to Texas Rule of Evidence 701 as long as the opinion is (a) rationally based on the witness's perception and (b) helpful to determining the fact in issue. Id. 701. Further, an opinion is not objectionable just because it embraces an ultimate issue. Id. 704(a).
Whether a defendant is guilty is a conclusion to be reached by the jury based upon the instruction given them in the court's charge, coupled with the evidence admitted by the judge through the course of trial. Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974) overruled on other grounds, Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
A person commits the offense of possession of child pornography if the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who was engaging in sexual conduct and the person knows that the material depicts the child. PENAL § 43.26(a). A person commits the offense of sexual performance by a child younger than 18 years old if, knowing the character and content thereof, a person induces a child younger than 18 years of age to engage in sexual conduct. Id. § 43.25(b). The penal code defines "sexual conduct" to include "lewd exhibition of . . . any portion of the female breast below the top of the areola." Id. § 43.25(a)(2). The offense is a first-degree felony if the victim is younger than 14 years of age at the time the offense is committed. Id. § 43.25(c).
III. Application of Law to Facts
During appellant's trial, the prosecutor asked Dallas Police Detective Gregory Dugger if the photograph C.M. sent appellant depicted a "lewd exhibition of the female breast . . . below the areola." Defense counsel objected that the question sought to elicit testimony that would relate to a material fact to be determined by the jury. The State responded that Detective Dugger was an expert based on his testimony of at least eleven years' experience in investigating Internet facilitated sex crimes against children. The trial judge overruled defense counsel's objection and advised the jury that the detective would testify as to what his opinion might be but that the jurors would make the ultimate fact decisions. Detective Dugger testified that he considered the image to be a lewd exhibition of the female breast below the top of the areola because it was "not a natural photo or pose for a child of that age . . . [and] appears to be sexually suggestive."
On appeal, appellant argues Detective Dugger's testimony amounted to testimony that appellant was guilty of the charged offenses. He notes that the penal code and his indictment required a jury to find the photograph or photographs to be "lewd" and that the court's charge offered no definition, potentially increasing the significance of Detective Dugger's testimony. He further contends that as a police officer, Detective Dugger's testimony of guilt was highly prejudicial.
Assuming, without deciding, the trial court erred by permitting Detective Dugger to testify as an expert that he considered the image to be a lewd exhibition of the female breast below the top of the areola, such alleged non-constitutional error must affect appellant's substantial rights. TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if we, after examining the record as a whole, have fair assurance that the error did not influence the jury, or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). In assessing the likelihood the jury's decision was adversely affected, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, the jury instructions, the arguments, and the voir dire. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). Other factors in this consideration include whether the State emphasized the error and overwhelming evidence of the defendant's guilt. Id. at 356-57.
Here, the jury saw the photograph of C.M. and may have reasonably determined that it was lewd without Detective Dugger's testimony. The record shows appellant as Akime demanded "two pics, one breast pic, no bra, and a booty pick (sic) with some sexy panties on" from which the jury could infer appellant intended the photograph to depict C.M. engaging in sexual conduct. Moreover, the trial judge orally instructed the jury before Detective Dugger testified that the detective's testimony was his opinion and that the jurors would make the ultimate fact decisions in all the elements of the cases. During closing arguments, while the State argued appellant intended the photograph to be lewd, the State did not see the need to reference or otherwise emphasize the detective's testimony in urging that conclusion.
The record also contains overwhelming evidence of appellant's guilt. Appellant admitted to police that he owned the cell phone recovered at his apartment. That cell phone had open Facebook and Kik accounts containing the photographs of C.M. and his conversations with her. Those conversations revealed C.M. informed appellant she was 17 years old, and the record shows C.M. was 13 years old at the time of the offense. Appellant admitted to police and at trial that he used the "Akime" and "Tayshawn" identities. And appellant admitted to police he asked C.M. for photographs of her breasts.
Based on this record, we have fair assurance that the error did not influence the jury, or had but a slight effect. See Solomon, 49 S.W.3d at 365. Accordingly, we conclude appellant's substantial rights were not affected by error, if any, and overrule his first issue.
MODIFICATION OF THE JUDGMENT
In his second issue, appellant complains the child pornography judgment should be reformed to correctly reflect that the trial judge sentenced appellant to 20 years' confinement. The State agrees with appellant on this second issue. The State also raises a cross-issue that the judgments in both cases should be modified to reflect that appellant entered pleas of true to the enhancement paragraph in each case and that the trial court found them to be true.
The record shows the trial judge sentenced appellant to 20 years' confinement on the child pornography case, appellant entered pleas of true to the enhancement paragraphs, and the trial court found the enhancement paragraph to be true in both cases. The child pornography judgment erroneously reflects a sentence of 22 years' confinement, and both judgments erroneously reflect the pleas to and findings on the enhancement paragraph to be "N/A." We have the authority to modify the trial court's judgment to make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we sustain appellant's second issue and the State's cross-issue. We modify the child pornography judgment to reflect (i) appellant was sentenced to 20 years' confinement, (ii) appellant's plea to the first enhancement paragraph was "true," and (iii) the trial court's finding on the first enhancement paragraph was "true." We modify the sexual performance judgment to reflect (i) appellant's plea to the first enhancement paragraph was "true," and (ii) the trial court's finding on the first enhancement paragraph was "true."
CONCLUSION
As so modified, we affirm the trial court's judgments.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 160265F.U05
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F14-60874-Q.
Opinion delivered by Justice Schenck, Justices Francis and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that (i) appellant's punishment and place of confinement is "20 years institutional division, TDCJ," (ii) appellant's plea to the first enhancement paragraph was "true," and (iii) the trial court's finding on the first enhancement paragraph was "true." As MODIFIED, the judgment is AFFIRMED. Judgment entered this 11th day of July, 2017.
JUDGMENT
On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-00039-Q,
Opinion delivered by Justice Schenck, Justices Francis and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that (i) appellant's plea to the first enhancement paragraph was "true," and (ii) the trial court's finding on the first enhancement paragraph was "true." As MODIFIED, the judgment is AFFIRMED. Judgment entered this 11th day of July, 2017.