Nos. 05-04-00840-CR, 05-04-01435-CR
Opinion Filed July 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F02-71801-Hl and F02-71802-HL. Affirm and Affirm as Modified.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MARTIN RICHTER, Justice.
Donald Cameron Ogg entered non-negotiated nolo contendere pleas to one charge of aggravated sexual assault of a child younger than fourteen years of age (appellate cause number 05-04-00840-CR) and one charge of indecency with a child (appellate cause number 05-04-01435-CR). The trial judge found him guilty of the aggravated sexual assault charge and assessed punishment at five years' confinement and a $1,000 fine. In the indecency case, the trial judge found the evidence substantiated Ogg's guilt, but deferred adjudication and placed him on community supervision for ten years. On appeal, Ogg raises three points of error challenging the legal and factual sufficiency of the evidence to support the trial court's deferred adjudication order in the indecency case and the trial court's ruling allowing Lori Langston, a forensic interviewer with Dallas Children's Advocacy Center, to testify as the outcry witness in the aggravated sexual assault case. We affirm the deferred adjudication order and, as modified, affirm the judgment in the aggravated sexual assault case.
The heading for Ogg's third point of error reads as follows: "The evidence is factually insufficient to support appellant's conviction for aggravated sexual assault in that the evidence failed to prove beyond a reasonable doubt the element that appellant's actions were performed with the intent to arouse and gratify the sexual desire of the defendant not accidental." Although the heading refers to the aggravated sexual assault case, it is clear from the specific challenge and the body of the text that his complaint relates to the indecency charge. We address it accordingly.
Background
Ogg was a neighbor and the babysitter of the victim in both cases, nine year old K.M. The charges arose after B.B., an acquaintance, saw Ogg tickling K.M. in "places where he shouldn't have" and reported it to K.M.'s mother. K.M.'s mother questioned K.M. about it and learned that Ogg had inappropriately touched her chest and "in between her legs." The mother contacted police and K.M. was interviewed by Langston. K.M. told Langston that in addition to inappropriate touching, Ogg had also penetrated her "bathroom part" with his finger. At trial, Langston testified as the outcry witness for the aggravated sexual assault case and the mother testified as the outcry witness for the indecency case. Both women testified about what K.M. had disclosed to them. Langston testified K.M. gave detailed descriptions of the incidents and stated the penetration incident happened just once but that the touching occurred several times. The mother testified that at the time K.M. disclosed the abuse, the touching "had been happening a month to two months." K.M. also testified and described in detail the abuse. According to K.M., the first incident occurred while they were "camping." Ogg began by touching her "bathroom part" with his hand inside her jeans. He then placed his finger insider her, "swirled it around," and licked it. Ogg also put his hand under her shirt and pinched her nipple. K.M. testified that the fondling occurred several times after the camping incident, would sometimes continue even after she asked him to stop, and made her uncomfortable. She also testified that it would often occur when Ogg was tickling her. K.M. explained that she did not disclose the abuse because Ogg had told her not to tell, she was scared, and he let her use his computer. This testimony was corroborated in part by B.B., who described witnessing Ogg touch K.M. on her "private part" while tickling "her behind." Officer J.E. Corden testified he investigated the allegations and, as part of the investigation, interviewed Ogg. Ogg stated to him he would tickle K.M. "on her stomach, knees, thighs, and bottom" and inadvertently touched K.M. on her breast and her "bare thigh" once. Testifying in his defense, Ogg admitted tickling K.M. often, but denied tickling her in the vaginal area or for his sexual gratification. According to Ogg, K.M. would ask for him to tickle her and enjoyed him "pinching her bottom." Ogg testified that his statements to Corden were "stream of consciousness . . . just trying to figure out how [K.M.] could have interpreted his tickling as sexual." Ogg also testified that he "accidentally" touched K.M. in "the wrong places" on more than three occasions. Outcry Testimony
In his first point of error, Ogg complains the trial judge erred in allowing Langston to testify as the outcry witness in the aggravated sexual assault case. Under article 38.072 of the Texas Code of Criminal Procedure, a witness in a child abuse case is properly designated as the outcry witness and allowed to testify to hearsay statements of the child victim if the witness was the first person eighteen years or older to whom the child disclosed the abuse and the child more than generally insinuated that sexual abuse occurred. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2005); Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd). To preserve error on the ground that a witness improperly testified as an outcry witness, the defendant must timely and specifically object and, unless allowed a running objection, must continue to object each time the witness offers the improper outcry testimony. See Tex.R.App.P. 33.1; Beckham v. State, 29 S.W.3d 148, 153-54 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Here, the record reflects that Ogg objected to Langston testifying as the outcry witness prior to any testimony concerning the abuse. The judge conducted a hearing and, although Ogg argued that the proper outcry witness for both offenses was the mother, the judge determined Langston was the proper outcry witness for the aggravated sexual assault case. Ogg did not request a running objection and when the State offered K.M.'s outcry testimony as substantive evidence at trial through Langston, he did not object. By failing to object, he waived any error. We overrule Ogg's first point of error. Sufficiency of Evidence
In his second and third points of error, Ogg alleges that because he denied tickling K.M. in a "sexual manner" and there was no direct evidence showing he touched K.M. with the intent to arouse or gratify his sexual desire, the evidence is legally and factually insufficient to support the deferred adjudication order. In arguing these points, Ogg relies on the standards of review, used when guilt is contested, set out in Jackson v. Virginia, 443 U.S. 307 (1979) and Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). When a defendant pleads no contest to the charge, however, we do not apply those standards.See Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988) (op. on reh'g); Young v. State, 993 S.W.2d 390, 391 (Tex.App.-Eastland 1999, no pet.); Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.). Rather, we look to see if the evidence introduced at trial embraces every essential element of the offense charged and is sufficient to establish guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996); Young, 993 S.W.2d at 391. Based on the indictment in this case, to establish guilt, the State had to prove that Ogg intentionally and knowingly engaged in sexual contact with K.M. by touching her genitals with his hand with the intent to arouse and gratify his sexual desire. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). Proof of Ogg's intent to arouse or gratify could be direct or could be inferred. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd). As proof of Ogg's guilt, the State offered K.M.'s testimony that Ogg would tickle her, often touched her "bathroom part" with his hand in a manner that made her uncomfortable, often continued touching her even after she asked him to stop, and told her not to tell. Additionally, B.B. testified she witnessed Ogg touch K.M. on her "private part." We conclude this evidence was sufficient to establish knowing and intentional sexual contact. We also conclude that the intent to arouse or gratify Ogg's sexual desire could be inferred from the evidence showing Ogg's touching made KM. uncomfortable and continued after she asked him to stop and from his telling K.M. to keep the conduct a secret. That Ogg may have denied the offense and that no direct evidence was offered of his intent to gratify or arouse his sexual desire is of no consequence because under the standard of review we must apply, we look only to see if the evidence "embraced" each essential element of the offense. We overrule Ogg's second and third points of error. In a cross-point, the State correctly notes that the judgment in the aggravated sexual assault case reflects Ogg pleaded not guilty rather than nolo contendere. Accordingly, we modify the judgment to reflect the correct plea. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We affirm the trial court's judgment in the aggravated sexual assault case as modified. We also affirm the deferred adjudication order.