Opinion
No. 05-14-00994-CR
01-27-2016
JERRY ALLAN MIKROBERTS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1262918-T
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Myers
Jerry Allen Mikroberts appeals his conviction for aggravated sexual assault of a child under fourteen years of age. A jury found appellant guilty, and the trial court sentenced appellant to thirty years' imprisonment. Appellant brings one issue on appeal contending the evidence is insufficient to support his conviction for the charged offense of aggravated sexual assault and that he should have been convicted of the lesser included offense of indecency with a child. We affirm the trial court's judgment.
BACKGROUND
On November 4, 2012, nine-year-old L. was visiting her grandmother when the grandmother noticed L. looked sad. The grandmother asked L. what was wrong. L. said appellant, who was L.'s mother's boyfriend, had been touching her and had done something to her. The grandmother asked what appellant had done, and L. said "he had his private part towards her back part, her butt, and that he had been touching her several times and that one time he did that she looked back and it was some white stuff all on her clothes, her shorts and stuff." L. told her grandmother that it hurt. The grandmother called her daughter, L.'s mother, and told her to come to the house. The mother arrived with appellant. The grandmother told L.'s mother and appellant what L. had told her. The mother turned to appellant and asked if he did that. Appellant said, "No. Why would I do that?" L. then said, "Why you lying? You know you lying." The mother then left with appellant and took him to get his belongings from her apartment, and she told the grandmother she was going to call the police. That evening, appellant went to the Veterans Administration hospital complaining of suicidal ideations and was admitted to the hospital.
The records from the V.A. hospital contain notes from a social worker of an interview with appellant on November 5, 2012, in which he discussed the incident with L.
Veteran [appellant] began to cry throughout the rest of the interview as we discussed his current situation with CPS. He stated, "the lady last night put a call into CPS; she did not have to do that." I asked him what is his understanding as to why CPS was contacted. He stated, "the young lady (referring to the 9 year old child) was being [provocative] towards me; I didn't know how to take a hug; I told her to back up that this is not [appropriate] for either one of us." He stated, he kept telling "the young lady this is over between us." He would not elaborate further but stated, "I did nothing wrong." CPS has been contacted per MH hx. with case number reference in the CPRS records. Veteran tells me when he was age 7 or 8 that his 15 year old male cousin tried to insert his penis into his rectum. He stated, they were playing like they were mama and daddy. He made reference to this statement of him and "the young lady and I was playing like mama and daddy," but he would not provide further [explanation] when asked.The hospital records also show appellant told another person at the hospital that he went to the hospital because of worsening mood and suicidal ideation due "to his [girlfriend] learning that the patient acted 'inappropriately' with her young daughter. He stated that these events happened in the past but not recently."
After appellant was arrested, he was interviewed by a detective, and appellant agreed to make a written statement. Appellant wrote in the statement, "I am admitting to inappropriate sexual physical contact with a child." Appellant did not further describe in the written statement the contact he said was "inappropriate."
On November 19, 2012, L.'s mother took L. to the Children's Medical Center. The records from this hospital include notes taken by a nurse practitioner about why L. was at the hospital. The notes reflect L.'s mother's statements to the nurse practitioner.
Patient [L.] told mother that AP ["alleged perpetrator," appellant] has had sex with her. Mother asked patient if she understood what she was saying. Mother explained that sex would mean that AP put his whacker (referring to penis) inside of her and it hurt. Mother asked patient did he rub his "whacker" on her or did it hurt. Patient told mother that he rubbed his "whacker" on her. Per mother, patient told MGM ["maternal grandmother"] and maternal great-grandmother that AP had put his penis inside of her butt.The personnel at the hospital examined L.'s genitals but found no abnormality related to trauma or abuse.
Mother left and went home. Mother picked up AP and they left to go back to AP's home. Mother told patient to tell her the same thing she repeated what she said the first time in front of AP. AP admitted to having sex with patient. Mother stated that AP told patient that he would stop and they made a pinky swear that patient would not tell on AP.
Patient told mother that sex happened two times. Mother stated that after patient's interview at the Dallas Children's Advocacy Center (DCAC), mother dropped off MGM and maternal aunt at home. Mother and patient then talked. Patient then admitted to mother that AP has had sex with her three times. Two of the times, AP had sex with patient in the patient's room and mother was sleep [sic]. The last time, AP had sex with patient in the closet.
The assistant district attorney and an investigator interviewed L. The investigator testified that before asking L. about the offense, they tried to establish a rapport with her and make her comfortable, but they were unsuccessful. During the interview, L. "was very fidgety, playing with her fingernails, looking down, very short in her responses, just like she . . . did not want to be there." However, L. did mention two incidents. L. told them she was in bed and appellant "got under the covers with her, pulled her pants down and touched her." "The second incident that she mentioned was that [appellant] was in the closet. She walked into the closet with the [appellant] and he bent her over. She said bent her over and he said—this is probably not a direct quote—but 'if you tell your mom it's going to be me and you.'" After telling the prosecutor and investigator about these incidents, L. began answering "no" to all their questions, including whether she saw appellant's penis, whether appellant touched her, and whether he made her feel uncomfortable. Some of these "no" answers contradicted L.'s earlier statements during the interview. The prosecutor and investigator believed L. had "checked out," and they ended the interview.
The court's charge instructed the jury on both the charged offense of aggravated sexual assault of a child and on the lesser included offense of indecency with a child. The jury found appellant guilty of aggravated sexual assault of a child as charged in the indictment.
THE CHARGED AND INCLUDED OFFENSES
The State charged appellant with aggravated sexual assault of a child under fourteen years of age and alleged that appellant touched L.'s anus with his sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv), (a)(2)(B) (West Supp. 2015). The trial court instructed the jurors that if they did not find beyond a reasonable doubt that appellant was guilty of the charged offense, then they should consider whether he committed the lesser included offense of indecency with a child by touching any part of L.'s body with his sexual organ with the intent to arouse or gratify his sexual desire. See id. § 21.11(a)(1) (West 2011).
The difference between these two charges is where appellant touched L. with his sexual organ. If the State proved beyond a reasonable doubt that appellant touched L.'s anus, then the evidence is sufficient to prove he committed the charged first degree felony offense of aggravated sexual assault. However, if the evidence proved beyond a reasonable doubt that he touched her somewhere with his sexual organ but was not sufficient to prove beyond a reasonable doubt that he touched her anus, then appellant was guilty only of the lesser included third degree felony offense of indecency with a child.
STANDARD OF REVIEW
In reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact finder resolved conflicts in testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also defer to the fact finder's determination of witness credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899.
ANALYSIS
Appellant contends the evidence is insufficient for the jury to find him guilty of the charged offense of aggravated sexual assault of a child because the evidence was insufficient for the jury to find his sexual organ made contact with L.'s anus.
The statement appellant made to the social worker at the V.A. hospital about the incident is sufficient evidence for the jury to find appellant's sexual organ contacted L.'s anus. The notes from that interview include the following:
Veteran tells me when he was age 7 or 8 that his 15 year old male cousin tried to insert his penis into his rectum. He stated, they were playing like they were mama and daddy. He made reference to this statement of him and "the young lady and I was playing like mama and daddy," but he would not provide further [explanation] when asked.In his brief on appeal, appellant states it was the cousin who said "they were playing like they were mama and daddy," and that the social worker "merely theorized that Appellant tried to penetrate [L.'s] anus because he referenced the statement his cousin had made about playing like mama and daddy."
We disagree with appellant's reasoning. Although it is not entirely clear who the "He" refers to in the sentence, "He stated, they were playing like they were mama and daddy," the social worker and the jury could reasonably have concluded "He" was appellant and not appellant's cousin. The jury could interpret this evidence as appellant describing what "playing like mama and daddy" meant and then stating he engaged in that same behavior with L. With this interpretation, appellant defined "playing like they were mama and daddy" to mean one person trying to insert his penis into another person's rectum. The jury could conclude this description meant that the sexual organ of one person contacted the anus of the other person. Appellant then used that that same phrase to describe his conduct with L. The jury could find beyond a reasonable doubt from this evidence that appellant intentionally or knowingly caused contact between his sexual organ and L.'s anus.
In addition to appellant's statement in the V.A. hospital's records, there is also the evidence of the notes of the pediatric nurse practitioner at Children's Medical Center who took the medical and social history from L's mother. Those notes include the statement, "Per mother, patient told MGM [maternal grandmother] and maternal great-grandmother that AP had put his penis inside of her butt." A reasonable juror could conclude beyond a reasonable doubt from this evidence that appellant's penis was "inside of her butt" that appellant caused contact between his sexual organ and L.'s anus.
Appellant points to the evidence that L. said she saw "white stuff all on her clothes, her shorts and stuff" after appellant had been touching her. Appellant argues that if L. "had her clothes on, it seems highly improbable that there could have been contact between Appellant's penis and the child's anus." However, if L.'s "shorts and stuff had been pulled down exposing her buttocks and anus but were still on her body, then appellant could have contacted her anus with his penis. In her interview with the prosecutor and the investigator, L. said that on one occasion appellant "pulled her pants down and then touched her." L.'s statement that she saw "white stuff all on her clothes, her shorts and stuff" is not inconsistent with appellant's touching her anus with his penis.
Appellant also argues that other evidence makes it more reasonable that appellant rubbed his penis on L.'s buttocks and did not contact her anus. Appellant points to the evidence that L.'s mother described the conduct to medical professionals and social workers as appellant having inappropriately rubbed himself on the child, and he refers to his statement to the investigating officer that he made "inappropriate sexual physical contact with a child." However, none of the evidence appellant points to is inconsistent with appellant having touched L.'s anus. The evidence appellant cites does not describe where specifically appellant touched L. with his penis.
We conclude the evidence was sufficient to support appellant's conviction for aggravated sexual assault. We overrule appellant's issue on appeal.
CONCLUSION
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
140994F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1262918-T.
Opinion delivered by Justice Myers. Justices Fillmore and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of January, 2016.