Opinion
NO. 14-18-01073-CR
11-24-2020
David Eugene ROMANO, Appellant v. The STATE of Texas, Appellee
Crespin Michael Linton, Houston, for Appellant. Kyle Jones, Angleton, for Appellee.
Crespin Michael Linton, Houston, for Appellant.
Kyle Jones, Angleton, for Appellee.
Panel consists of Justices Wise, Jewell, and Poissant.
Ken Wise, Justice
A jury convicted appellant of attempted indecency with a child by contact, indecency with a child by contact, and indecency with a child by exposure. Appellant challenges the sufficiency of the evidence to support the convictions, a jury charge instruction, and two evidentiary rulings. We affirm.
BACKGROUND
Tim. Complainant Tim (a pseudonym), then in fourth grade, met appellant in the summer of 2012 at a garage sale. Appellant and Tim's mother, Samantha, chatted. He told Samantha he was a teacher, reserve police officer, and scuba instructor. He offered to teach Tim to scuba dive and to mentor Tim because Tim did not have a male role model in his life. Samantha agreed. Over the course of the next 18 months, Tim joined appellant (and sometimes his wife) every couple of weeks to camp, swim, attend festivals, or the like.
Massager incident. One evening, Tim and appellant were talking in appellant's living room. Appellant turned the topic to masturbation. Tim did not know what that word meant. A device Tim described as a back massager lay atop the back of the couch. Appellant held the massager, put Tim's hand over his own hand, touched Tim's thigh with the massager, and began moving the massager towards Tim's genitals. Tim pushed appellant away and said he was uncomfortable.
Skinny dipping. A few weeks later, Tim went camping at Mammoth Lake with appellant, appellant's son, and the son's friend. Tim felt obliged to go despite feeling uncomfortable after the massager incident. That night, appellant got undressed and made Tim undress, then they both got in the water. Tim saw appellant's genitals and felt uncomfortable.
Spooning. The same evening, appellant and Tim were alone in their tent, still naked. While Tim was lying on his side, appellant "spooned" him by curling the front of his body around the back of Tim's. Tim felt appellant's penis on his lower back. He felt uncomfortable and confused. At trial, Tim could not remember if appellant had an erection. Tim fell asleep and woke up in the same position.
Appellant's mentorship of Tim stopped around the beginning of 2014. Tim did not see appellant until a few years later, when they both attended an event at a high school. When Tim saw him, he had memories of being uncomfortable and not wanting to be around appellant. He walked well out of his way to avoid appellant. That night, Tim talked to Samantha for the first time about appellant's actions.
Alex. Near the end of 2015, appellant posted on a community Facebook page that he wanted to donate scuba lessons to a "well deserving kid" around nine years old. A woman named Sherri signed up her fifth-grade son, Alex (a pseudonym), for the lessons. Appellant learned Alex lacked a male role model and needed help in anger management. Sherri and appellant agreed he would mentor Alex.
Alex and appellant sat together in appellant's hot tub three times, always wearing swim trunks. Nobody else was in the hot tub or in the back yard during those times; Alex could not remember if anyone was in the house. The first time, they just talked. The second time, appellant put Alex on his lap and wrapped his arms around Alex's arms and torso. Alex had not been angry or acting in such a way to warrant appellant's controlling him physically. When Alex tried to get away, appellant held him tighter. Alex felt appellant's penis touch the top of his rear end. The penis was between flaccid and erect. Alex squirmed enough that appellant let him go. Alex felt very nervous and did not understand what was happening. The third time, appellant told Alex to come back onto his lap. Even though appellant was uncomfortable and nervous, he was scared and did not want to anger appellant, so he complied. Alex did not feel appellant's penis that time. At some point during their relationship, appellant talked to Alex about male and female bodies. Alex had not asked appellant about that topic. Alex went along with the conversation because he was "so scared and embarrassed." Alex eventually talked to his mother about what happened in the hot tub, and his relationship with appellant ended soon after.
Appellant's police interviews. Appellant was interviewed twice by police investigators, first about Alex's allegations and then, nearly a year later, about Tim's.
The first investigator described appellant's demeanor as "extremely nervous" and said he appeared to be at a loss for words. The investigator allowed appellant to end the interview and prepare a written statement instead. In that statement, appellant admitted he once was alone with Alex in the hot tub. He said Alex was trying to float on his back and appellant was helping by holding him up. Appellant said he never touched Alex inappropriately or to gratify any sexual desire. Alex's allegations were presented to the grand jury, which did not return an indictment.
In the second interview, appellant corroborated Tim's description of the massager but said it was kept in the bathroom, not on the couch. Appellant was unable to explain how Tim would have seen the massager. He denied using the massager on Tim. Much of the remainder of the interview concerned which lake appellant and Tim had visited: Mammoth Lake, as Tim said, or Lake Texana, as appellant said. Mammoth Lake is in Brazoria County, the county in which appellant would eventually be prosecuted; Lake Texana is not. He denied swimming naked with Tim and asserted he was never alone in the tent with Tim.
ANALYSIS
I. Sufficiency of the evidence
In his first issue, appellant contends the evidence is legally insufficient to support the jury's verdict on any of the three charged offenses.
A. Standard of review
In evaluating the legal sufficiency of the evidence, we must view all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). This standard applies equally to circumstantial and direct evidence. Laster , 275 S.W.3d at 517–18. Because the factfinder views the evidence firsthand, the factfinder is in the best position to resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from the evidence. Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; Laster , 275 S.W.3d at 517 ("[U]nlike the factfinder—who can observe facial expressions and hear voice inflections first-hand—an appellate court is limited to the cold record."). We presume the factfinder resolved any conflicts in favor of the verdict and must defer to that resolution as long as it is rational. Jackson , 443 U.S. at 326, 99 S.Ct. 2781. The jury may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence. Acosta v. State , 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). "After giving proper deference to the factfinder's role, we will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential element." Laster , 275 S.W.3d at 517.
B. Elements of the offenses
Indecency with a child is codified in section 21.11 of the Penal Code. A person commits indecency with a child by contact by engaging in sexual contact with the child or causing the child to engage in sexual contact. Tex. Penal Code § 21.11(a)(1). "Sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. Id. § 21.11(c). A person commits indecency with a child by exposure if, with intent to arouse or gratify the sexual desire of any person, he (A) exposes his anus or any part of his genitals, knowing the child is present; or (B) causes the child to expose the child's anus or any part of the child's genitals. Id. § 21.11(a)(2).
The current version of section 21.11 applies only to offenses committed on or after September 1, 2017. Act of May 28, 2017, 85th Leg., R.S., ch. 685, §§ 32, 45(a), 2017 Tex. Gen. Laws 3038, 3056, 3059 (codified at Tex. Penal Code § 21.11 ). The version of section 21.11 in effect at the time of the events in this case was enacted in 2009. Act of May 20, 2009, 81st Leg., R.S., ch. 260, § 1, 2009 Tex. Gen. Laws 710, 710. The only difference between the two versions is the definition of "child," and that difference is not relevant in this case.
An attempted offense occurs when a person, with specific intent to commit an offense, does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense. Id. § 15.01(a). An imaginary line separates mere preparatory conduct, which is usually noncriminal, from an act that tends to effect the commission of an offense, which is always criminal. Flournoy v. State , 668 S.W.2d 380, 383 (Tex. Crim. App. 1984) ; Adekeye v. State , 437 S.W.3d 62, 68–69 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The Legislature did not intend to draw this line at the last proximate act before completing the offense. McCravy v. State , 642 S.W.2d 450, 460 (Tex. Crim. App. 1980).The fact that a person could have taken further actions without actually committing the offense does not act so as to render the person's actions nothing more than mere preparation. Hackbarth v. State , 617 S.W.2d 944, 946 (Tex. Crim. App. [Panel Op.] 1981).
C. Application
During closing argument, the State paired the charged offenses with the acts as follows: attempted indecency with a child by contact was "the massager incident," indecency with a child by contact was "the spooning," and indecency with a child by exposure was "the skinny dipping." We use those pairings in our analysis. Appellant does not dispute that Tim was a child at the time of the events at issue.
Attempted indecency by contact: massager incident. Tim testified he and appellant were talking when appellant changed the subject to male masturbation. Then, appellant put the massager on Tim's thigh and began moving it towards Tim's genitals. The jury could rationally infer appellant intended to arouse or gratify the sexual desire of himself and/or Tim by trying to touch Tim's genitals with the massager, particularly given appellant had been discussing masturbation with Tim just before putting the massager on Tim's thigh. Appellant did not reach Tim's genitals only because Tim pushed the massager away. Putting a massager on Tim's thigh and moving it towards Tim's genitals crossed the imaginary line between mere preparation and an act that tended but failed to effect the commission of indecency with a child by contact.
Indecency by contact: spooning. Tim testified appellant spooned him while they were lying on their sides in their tent. The jurors were permitted to draw on their own observations and experiences to infer that by holding Tim in a spooning position, a position suggesting intimacy, appellant intended to arouse or gratify his sexual desire. Appellant's penis touched Tim's back. Combined with the requisite intent, that touching is sexual contact.
Indecency by exposure: skinny dipping. Tim testified appellant undressed and made him undress at the lake. That testimony establishes both types of indecent exposure: appellant exposed his own genitals knowing Tim was present, and appellant caused Tim to expose his genitals. The jury was not required to isolate that moment in deciding whether appellant intended to gratify his sexual desire. The jury could consider the skinny-dipping incident as one of several overtly sexual acts appellant committed or attempted to commit against Tim. See Evans v. State , 202 S.W.3d 158, 166 (Tex. Crim. App. 2006) (evidence should be viewed "in combination and in sum total" in sufficiency analysis); accord Christensen v. State , 240 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).
Appellant's arguments. Appellant argues the evidence is legally insufficient because Tim's testimony is the only evidence of the elements of the offenses, and appellant denied Tim's allegations in his police interview. Specifically, appellant denied the massager incident, denied being alone in the tent with Tim, denied swimming naked with Tim, and denied that their camping trip was in Brazoria County. He asserts his denials "overwhelmingly outweigh" Tim's testimony.
Appellant's argument fails to consider the evidence in the light most favorable to the verdict, the standard by which we assess evidentiary sufficiency. As the sole judge of credibility, the jury could have believed Tim and disbelieved appellant. And, appellant is wrong to imply Tim's testimony is not enough. The uncorroborated testimony of the child can support a conviction for indecency with a child. Gonzalez v. State , 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
Appellant wrongly suggests the conflicting evidence of where the spooning and skinny-dipping incidents took place renders the evidence legally insufficient. Venue is a procedural matter, not an element of a crime. Schmutz v. State , 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). The State bears the burden to prove venue, but only by a preponderance of the evidence. Tex. Code Crim. Proc. art. 13.17. "[F]ailure to prove venue does not implicate sufficiency of the evidence...." Schmutz , 440 S.W.3d at 35.
We overrule appellant's first issue.
II. Extraneous-offense evidence
In his second issue, appellant asserts the trial court erred in admitting Alex's testimony in the guilt/innocence phase as evidence of an extraneous offense under article 38.37 of the Code of Criminal Procedure.
A. Standard of review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion only if its decision is so clearly wrong as to lie outside the zone within which reasonable people might disagree. Taylor v. State , 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
B. Evidence of extraneous offenses
Evidence of a person's character or character trait is not admissible to prove the person acted in accordance with that character or trait on a particular occasion. Tex. R. Evid. 404(a)(1). Article 38.37, entitled "Evidence of extraneous offenses or acts," is an exception to rule 404(a)(1). It applies to certain types of sex-based offenses, including indecency with a child. Tex. Code Crim. Proc. art. 38.37, § 2(a)(C) ; Lara v. State , 513 S.W.3d 135, 141 (Tex. App.—Houston [14th Dist.] 2016, no pet.). If the statutory requirements of article 38.37 are met, evidence that ordinarily would be inadmissible under rule 404(a)(1) becomes admissible. Tex. Code Crim. Proc. art. 38.37, § 2(b) ; Lara , 513 S.W.3d at 141. The jury may consider that evidence's bearing on "relevant matters," including the defendant's character and acts performed in conformity with his character. Tex. Code Crim. Proc. art. 38.37, § 2(b). Before such evidence may be introduced, the trial judge must (1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose. Id. art. 38.37, § 2 -a.
C. Application
Appellant contends Alex's testimony was not adequate to support a beyond-a-reasonable-doubt finding by the jury that appellant committed indecency by contact with Alex. "Adequate" under section 2 -a means legally sufficient. Taylor v. State , 509 S.W.3d 468, 476 (Tex. App.—Austin 2015, pet. ref'd) ("[S]ection 2–a of article 38.37 requires a trial court to make a determination regarding the sufficiency of the evidence of an extraneous offense....").
Alex's testimony at the article 38.37 hearing was substantially similar to his trial testimony. Appellant volunteered to teach him to scuba dive and mentor him. One afternoon, Alex and appellant were sitting in appellant's hot tub. Appellant pulled Alex onto his lap and wrapped his arms around Alex. Alex was not doing anything that would require appellant to hold him in that manner. Alex tried to get away, but appellant held him tighter. While sitting on appellant's lap, Alex felt appellant's semi-erect penis. On other occasions, appellant. Without solicitation, talked to Alex about male and female puberty and body functions.
From Alex's testimony, a jury could rationally infer that appellant's holding Alex was not necessary, invited, or wanted. A jury could further infer that appellant intended to arouse or gratify his sexual desire by holding Alex in that manner. That intent, combined with appellant's penis touching Alex, is sexual contact. Alex's testimony is legally sufficient—"adequate," in article 38.37's parlance—to support a finding that appellant committed indecency by contact with him.
Appellant argues Alex's testimony cannot support a finding beyond a reasonable doubt that appellant committed that offense because (1) Alex did not tell his mother what happened in the hot tub, and (2) the grand jury did not indict him for his conduct towards Alex. Both of those facts would go to the weight of Alex's testimony, not its admissibility. They do not render his testimony inadequate under article 38.37. Bradshaw v. State , 466 S.W.3d 875, 880 (Tex. App.—Texarkana 2015, pet. ref'd) (fact that grand jury did not indict defendant for extraneous offense was "of no consequence" to question of whether evidence of that offense was admissible under article 38.37 ).
We overrule appellant's second issue.
III. Jury instruction on venue
Appellant's third issue concerns a venue instruction in the jury charge. He does not complain that venue was improper in Brazoria County, only that the jury instruction was improper.
A. Standard of review
Our review of a claim of jury-charge error is two-pronged. First, we determine if error exists in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we determine if it caused sufficient harm to require reversal. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Unpreserved charge error requires reversal only if the record shows "egregious harm" to the defendant. Id. Preserved charge error requires reversal if we find "some harm" to the defendant. Id. "Some harm" means any harm, regardless of degree. Dickey v. State , 22 S.W.3d 490, 492 (Tex. Crim. App. 1999) ; Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
B. Jury charge instructions
The trial court must give the jury "a written charge distinctly setting forth the law applicable to the case...." Tex. Code Crim. Proc. art. 36.14. Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that lacks a statutory basis. Brown v. State , 122 S.W.3d 794, 799 (Tex. Crim. App. 2003) (citing Tex. Code Crim. Proc. art. 38.04 ).
Article 13.19 of the Code of Criminal Procedure states:
If any offense has been committed within the state and it cannot be readily determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.
Tex. Code Crim. Proc. art. 13.19. Article 13.19 controls in cases with "factual uncertainty as to the locus of the crime." Wood v. State , 573 S.W.2d 207, 210 n.1 (Tex. Crim. App. [Panel Op.] 1978).
C. Application
The trial court's charge includes the following instruction:
Venue is the county where the prosecution of a criminal offense is begun and tried. The venue of the criminal offense of Attempted Indecency with a Child by Contact, Indecency with a Child by Contact and Indecency with a Child by Exposure is the county where the offense occurred. However, if any offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides. In any criminal offense the indictment may allege that the offenses were committed in the county where the prosecution is carried on.
Appellant complains about the sentence drawn from article 13.19 : "However, if any offense has been committed within the state and it cannot be readily determined which county or counties the commission took place, trial may be held in the county in which the defendant resides."
In Whitley v. State , 635 S.W.2d 791 (Tex. App.—Tyler 1982, no pet.), the defendant was charged in connection with injuries his daughter sustained on a road trip from Arkansas to Houston. He was prosecuted in Nacogdoches County, the location in which the girl was hospitalized and he was apprehended. The trial court included a jury instruction under article 13.19. Id. at 792. The court of appeals concluded the instruction was proper because venue was governed in part by article 13.19. Id. at 797–98. Accord Tucker v. State , 751 S.W.2d 919, 924 (Tex. App.—Fort Worth 1988, pet. denied) (jury instruction under article 13.19 proper due to conflicting evidence as to where offense occurred).
The jury in this case heard conflicting evidence as to where two of the offenses (indecency with a child by contact and indecency with a child by exposure) occurred: Brazoria County or elsewhere. Tim testified they occurred at Mammoth Lake, which is in Brazoria County. In his statements to the police, appellant denied those incidents occurred and said the only place he went camping with Tim was at Lake Texana, which is not in Brazoria County. As a result of this conflicting evidence, there was "factual uncertainty as to the locus of" those two offenses. That factual uncertainty justified an instruction under article 13.19.
Appellant appears to argue the trial court erred in including the article 13.19 instruction because the evidence creating the factual uncertainty as to venue was not presented by the State alone. Rather, the State presented testimony that the offenses occurred in Brazoria County, and it was appellant's statements to the police denying they occurred in Brazoria County that created the factual uncertainty. He cites no authority to support his implication that the conflicting evidence regarding the locus of the offenses must come from the State alone.
We conclude the trial court did not err by including a jury instruction under article 13.19. Accordingly, we do not reach the question of harm. We overrule appellant's third issue.
IV. Evidence during punishment phase
In his fourth issue, appellant contends the trial court abused its discretion by admitting evidence in the punishment phase of statements he allegedly made to a woman and her son.
Lori Koons testified about statements a man made to her while she was walking with her 10-year-old son. The man allegedly told her he had a scuba diving business and asked if her son would be interested in taking lessons. Appellant objected on the basis of hearsay. The State responded that it would elicit testimony from Koons establishing the man was appellant, and his statements are not hearsay because they are statements of an opposing party. See Tex. R. Evid. 801(e)(2)(A) (statement made by opposing party is not hearsay). The trial court overruled the objection. Hearsay was the only basis on which appellant objected to Koons' testimony.
On appeal, appellant complains Koons' testimony was inadmissible under article 37.07 of the Code of Criminal Procedure. That article governs what evidence is admissible in the punishment phase. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). Specifically, appellant contends Koons' testimony did not meet the threshold for admissibility of an "extraneous crime or bad act."
To preserve an issue for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). The complaint asserted on appeal must comport with the complaint raised in the trial court. Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
Appellant's complaint on appeal regarding Koons' testimony does not comport with the complaint he raised in the trial court. Accordingly, he failed to preserve error for appellate review. Id.
We overrule appellant's fourth issue.
CONCLUSION
We affirm the trial court's judgment.