Opinion
No. 05-10-00988-CR No. 05-10-00989-CR
02-16-2012
JOHN WILLIE SMITH, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed February 16, 2012
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-58515-U & F09-55943-U
OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Fillmore
On February 9, 2006, John Willie Smith pleaded guilty to aggravated assault with a deadly weapon. The trial court deferred an adjudication of guilt, placed Smith on community supervision for five years, and assessed a $2500 fine. In 2009, Smith was indicted on three offenses of indecency with a child. The State also filed a motion to adjudicate guilt in the aggravated assault with a deadly weapon case on grounds Smith committed the three offenses of indecency with a child and failed to comply with other conditions of his community supervision.
Smith was tried on one of the indecency with a child offenses (cause number F09-55943-U). A jury found Smith guilty of the charge and sentenced him to twenty years' imprisonment. The following week, the trial court adjudicated Smith guilty of aggravated assault with a deadly weapon and assessed punishment of twenty years' imprisonment to run consecutively with the sentence Smith received on the indecency with a child conviction.
In two points of error, Smith contends (1) the evidence is insufficient to support the conviction for indecency with a child, and (2) the trial court's oral pronouncement of cumulation of the sentence on the aggravated assault with a deadly weapon conviction is fatally at variance with the written cumulation order. We affirm the trial court's judgments. Sufficiency of the Evidence
In his first point of error, Smith argues the evidence is insufficient to support the indecency with a child conviction.
Standard of Review
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), pet. for cert. filed (U.S. Jan. 3, 2012) (No. 11-944). We examine 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, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury").
Applicable Facts
V.G. testified she met Smith, her stepfather's cousin, when she was seven or eight years old. On June 14, 2009, when V.G. was twelve years old, Smith was at V.G.'s house. Late that night, V.G.'s mother was at work, her stepfather and brother were watching a movie in the master bedroom, and V.G. and her best friend, A.R., were watching a movie in her room. V.G. and A.R. were "play fighting," which V.G. explained was pushing, but not hitting, each other. According to V.G., she left the room, and A.R. began play fighting with Smith. A.R. and Smith wound up in V.G.'s brother's room.
V.G. walked into her brother's room, hit A.R., told A.R. to "come get her," and ran into the closet in her sister's room. A.R., however, went into V.G.'s room and began watching a movie. V.G. went into her room and asked A.R. if she was still playing. A.R. said no. Smith then came into V.G.'s room, picked V.G. up over his shoulder, carried V.G. into her brother's room, and threw her on the bed. V.G. testified Smith got on top of her and kissed her on the lips. According to V.G., Smith then touched her breasts on top of her clothes, lifted her shirt at the collar, and attempted to see her breasts. V.G. testified that Smith then touched her vagina on top of her clothes and moved his hand "up and down." After he touched her vagina, Smith asked V.G. if she "wanted to see his dick." V.G. said no, and Smith responded that "it won't hurt." According to V.G., she told Smith that she was going to tell her stepfather, and Smith let her up.
V.G. went into the kitchen and saw A.R. V.G. asked A.R. if Smith had touched her anywhere. A.R. said yes, and the girls started crying. According to V.G., A.R. also said Smith was trying to look at her breasts. After A.R. went back to V.G.'s bedroom, Smith came into the kitchen and said he would give V.G. twenty dollars if she did not tell anyone about what happened.
The next afternoon, V.G.'s mother asked her whether Smith ever made her feel uncomfortable. V.G. started crying and asked if she could get A.R. With A.R. present, V.G. told her mother some of what happened. V.G.'s mother called the police. V.G. admitted she did not include in her statement to the police that Smith kissed her or lifted her shirt. She also admitted that she included in her statement to the police that Smith was "feeling on" A.R., which is different from Smith attempting to look at A.R.'s breasts.
A.R. testified she was fourteen years old and is V.G.'s best friend. A.R. was spending the night at V.G.'s house and had met Smith for the first time. A.R. testified that, when she was outside the house playing, Smith told her to stop arguing with people. It did not upset A.R. that Smith scolded her, and she did what he told her to do.
A.R. testified that she and V.G. were play fighting, and Smith started playing with them. Smith, V.G., and A.R. "ended up" in V.G.'s brother's room. V.G. left the room, and Smith told A.R. to "come here." Smith was sitting on the edge of the bed, and A.R. was standing in front of him. According to A.R., Smith started to "feel on" her breasts over her clothes with his hand. A.R. denied that Smith lifted her shirt. After Smith stopped touching her, she went into V.G.'s room and started watching television.
Smith came into the room and tried to get A.R. to play some more. She told Smith that she did not want to play, and Smith said to V.G., "come on Big Cuz." V.G. and Smith started playing and went out of the room. Approximately five minutes later, V.G. came back into the room. A.R. testified V.G.'s eyes were red as if she had been crying. The two girls went into the kitchen, and A.R. asked V.G. what was wrong. V.G. said it was about Smith. According to A.R., the two girls began crying, but did not talk about what had happened. The next day, they talked to V.G.'s mother. V.G.'s mother testified that she asked V.G. if Smith ever made her feel uncomfortable. After V.G. brought A.R. into the conversation, both girls told her what had happened, and she called the police. According to V.G.'s mother, A.R. had met Smith before that weekend. She also testified, however, that A.R. might not have remembered meeting Smith.
Detective Jerry Williams testified he responded to V.G.'s mother's call. V.G. and A.R. were interviewed by the police, but V.G.'s stepfather was not interviewed. Williams admitted he should have interviewed V.G.'s stepfather. Williams testified the case was based on V.G.'s and A.R.'s statements.
The jury convicted Smith of indecency with V.G. During the punishment phase of the trial, the jury heard testimony from V.F., V.G.'s mother's goddaughter, that the same night Smith touched V.G. and A.R., he lifted V.F. with his hands on the sides of her breasts and licked V.F. between the breasts. V.F. told V.G.'s mother about the incident, causing V.G.'s mother to talk to V.G. and A.R. The jury also heard evidence of Smith's criminal history, including Smith's previous conviction for assault of a thirteen-year-old girl. Smith was placed on community supervision for the assault conviction, and the conditions of Smith's community supervision included sex offender evaluation and treatment. Smith failed to complete the sex offender treatment program, and his community supervision was revoked.
The jury sentenced Smith to twenty years' imprisonment on the indecency with a child conviction.
Analysis
A person commits the offense of indecency with a child by engaging in sexual contact with a child younger than seventeen years of age. Tex. Penal Code Ann. § 21.11(a) (West 2011). As relevant in this case, "sexual contact" includes touching by a person through clothing of any part of the genitals of the child with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). The testimony of a child witness alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2011); Navarro v. State, 241 S.W.3d 77, 81 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd); see also Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (child's testimony sufficient to support conviction for aggravated sexual assault).
The Legislature amended article 38.07 of the code of criminal procedure effective September 1, 2011 to apply to certain offenses under section 20A.02 of the penal code. Because this amendment does not affect our analysis in this case, we cite to the current statute for convenience.
Smith asserts the evidence is insufficient to support the conviction because V.G.'s statement to the police differed from her testimony at trial; there was conflicting testimony about when A.R. met Smith; V.G.'s stepfather, the only adult, other than Smith, present in the house at the time of the offense, was never questioned by the police; the evidence of play fighting between V.G., A.R., and Smith could account for any inadvertent touching; and A.R. had been scolded by Smith and could possibly have a motive to lie. However, V.G. testified that Smith touched her vagina over her clothes and moved his hand "up and down." She also testified that Smith kissed her on the lips, touched her breasts over her clothes, attempted to lift her shirt to look at her breasts, and asked if she "wanted to see his dick." V.G.'s testimony was sufficient to support the conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07; Navarro, 241 S.W.3d at 81; see also Tear, 74 S.W.3d at 560.
Smith essentially complains that V.G. and A.R. were not credible. However, the jury heard all the testimony, including the testimony relied upon by Smith. It was the role of the jury to judge the credibility of the testimony, and we must defer to that determination. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Reviewing all the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found Smith guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We resolve Smith's first point of error against him. Cumulation of Sentences
In his second point of error, Smith argues there is a fatal variance between the trial court's oral pronouncement and written order concerning sentence cumulation in the aggravated assault with a deadly weapon conviction. Smith requests this Court "delete" the cumulation order and order the two sentences be served concurrently.
Applicable Facts
Smith's trial on the indecency with a child charge began on April 6, 2010. Smith was sentenced to twenty years' imprisonment on the indecency with a child conviction on April 8, 2010.
On April 15, 2010, the trial court heard the State's motion to adjudicate guilt in the aggravated assault with a deadly weapon case. Three of the grounds for revocation in the State's motion were that Smith committed indecency with a child with A.R., V.F., and V.G. The State requested the trial court take judicial notice of "all the testimony and all evidence" that it heard in the case "involving [V.G.] Cause Number F09-55943." The trial court responded that it "heard the case involving the Cause Number just stated by the Prosecutor last week" and that is was "taking Judicial Notice of the entire testimony since that is an allegation in the Motion to Revoke." The trial court specifically noted it heard testimony from A.R., V.F., and V.G. in "Cause Number F09-55943."
Smith testified at the hearing on the motion to adjudicate. He affirmed he was aware of the three charges involving V.G., A.R., and V.F. He denied he committed the offenses and stated he disagreed with the jury's verdict in the trial "last week." Smith was questioned specifically about V.G.'s, A.R.'s, and V.F.'s testimony during the trial. Smith testified that everything the girls said was a lie and that their testimony differed from their written statements.
The trial court adjudicated Smith guilty of the aggravated assault with a deadly weapon offense. Smith's counsel requested the trial court reserve its judgment on punishment until the "other two cases" were resolved. Smith's counsel then stated:
If you're not willing to do that, of course, we would ask that given Mr. Smith's predicament here, the fact that he got 20 years on one case yesterday [sic] and is facing two more jury trials, we ask you to be lenient on Mr. Smith. And if nothing else, Your Honor, to allow this sentence to run concurrent with the one he got last week on the jury trial.
The State requested the trial court assess a punishment of twenty years' imprisonment and "stack the sentences."
The trial court stated it " was present last week and heard every bit of it and listened to every victim testify." It then sentenced Smith, "to 20 years in the penitentiary. Stacks it on top of the other 20 years you received last week." The trial court's written judgment states:
Said judgement, sentence, and term of punishment in this cause shall commence and run when the sentence in Cause No. F09-55943-U a previous conviction of the defendant for the offense of ind. child cont. in the 291 Judicial District Court of Dallas County, Texas, has served and has ceased to operate. The sentence in said prior cause was imposed on April 8, 2010, and was for a term of confinement in the Inst. Dev. of Tex. Dept. of Crim. Just. for 20 yrs TDC.
Analysis
Generally, when the same defendant is convicted in two or more cases, the trial court has discretion to order those sentences to run either consecutively or concurrently. Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2011). The cumulation order should be sufficiently clear so that it may be understood without having to refer to other evidence. Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985) (quoting Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App. 1967)). The court of criminal appeals has set out five recommended elements of a cumulation order: (1) the trial court number of the prior conviction; (2) the correct name of the court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. Williams v. State, 675 S.W.2d 754, 763-64 (Tex. Crim. App. 1984) (op. on reh'g). Inclusion of all the elements is not mandatory. Id. at 764. The trial court's written cumulation order contains all five elements set out in Williams. Smith, however, complains there was a fatal variance between the trial court's oral pronouncement and written order concerning sentence cumulation, the trial court's oral pronouncement controls over its written order, and the oral pronouncement is too vague to be enforced.
A "cumulation order will be upheld so long as the trial court's description of prior convictions is 'substantially and sufficiently specific' to give notice both to the defendant and to the Department of Corrections exactly which sentences the instance sentence is cumulated with." Id. The court of appeals has upheld "[c]umulation orders which merely set out the cause number and the correct name of the trial court of the prior conviction." Id. Here, considering the entire hearing on the motion to adjudicate, it is clear that all parties understood the "20 years [Smith] received last week" referred to Smith's conviction for indecency with a child in cause number F09-55943 and that the previous sentence had been imposed in the same trial court hearing the motion to adjudicate. "[T]he context of the oral pronouncement makes clear that all understood the pronouncement to be what was ultimately incorporated into the written order." Hill v. State, 213 S.W.3d 533, 536 (Tex. App.-Texarkana 2007, no pet.). We conclude there was no fatal variance between the trial court's oral pronouncement and written order of sentence cumulation.
See also Colliflower v. State, No. PD-1965-04, 2007 WL 274180, at *2 (Tex. Crim. App. Jan. 31, 2007) (not designated for publication) (cumulation order was valid because oral pronouncement of cumulation clearly stated instant sentence would be served consecutively, judgment containing cumulation order was tendered to defense counsel, and defendant was made aware of consecutive sentencing throughout hearing).
Relying on Odlozelik v. State, 837 S.W.2d 825 (Tex. App.-Tyler 1992, no pet.) (per curiam) and Olivas v. State, No. 10-03-00092-CR, 2005 WL 169336 (Tex. App.-Waco Jan. 26, 2005, no pet.) (mem. op., not designated for publication), Smith also asserts the trial court's oral pronouncement of sentence cumulation was too vague to be enforced. However, in both Odlozelik and Olivas, the trial court's oral pronouncement of sentence cumulation was a general statement intended to encompass any prior sentence, or multiple prior sentences without specifying a specific sentence. See Odlozelik, 827 S.W.2d at 826 ("sentence ordered herein . . . shall run consecutive with any other sentence now being served"); Olivas, 2005 WL 169336, at *1 (sentence would be "stacked on top of any other sentence [defendant was] required to serve"). Here, the context of the trial court's oral pronouncement made clear the identity of Smith's single prior sentence onto which the trial court stacked the new sentence. See Hill, 213 S.W.3d at 536. We resolve Smith's second point of error against him.
See also Harris v. State, No. 01-08-00261-CR, 2009 WL 4856416, at *15 (Tex. App.-Houston [1st Dist.] Dec. 17, 2009, pet. ref'd) (mem. op., not designated for publication) (oral cumulation order that sentence would run consecutively with primary offense sufficient when context of entire proceeding before trial court made clear the identity of prior sentence onto which trial court stacked new sentence).
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The trial court's judgments are affirmed.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100988F.U05