Jefferson Robinson v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

99-00120 Robinson v State of Texas.wpd No. 04-99-00120-CR
Jefferson ROBINSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-1239
Honorable Stanton B. Pemberton, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 15, 2000

AFFIRMED AS REFORMED

On the Court's own motion, we withdraw our previous opinion and judgment delivered on October 25, 2000, and issue this opinion and judgment in its place. Jefferson Robinson appeals his conviction of and sentence for indecency with a child by sexual contact. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1998, Jefferson Robinson was indicted on three counts of indecency with a child by sexual contact and aggravated sexual assault. At trial, Robinson entered a plea of not guilty. A jury found Robinson not guilty of aggravated sexual assault but found him guilty of indecency with a child by sexual contact as alleged in count three of the indictment. (1)

T.W., Robinson's stepdaughter, was the victim listed in count three of the indictment. She was five years old at the time of the offense and seven years old at the time of trial. At trial T.W. identified Robinson and testified that Robinson had touched her "middle part" with his hand and fingers sometime during the day when her mother was not at home and her sisters were in another room. T.W. first stated Robinson touched her through her clothes. However, when asked if Robinson had moved her clothes, T.W. became confused, and said "I don't remember that part." Then, using a doll, T.W. demonstrated how Robinson pulled her underwear down and touched her middle part.

Dr. Juan Parra, a doctor who examined T.W. in July 1997, testified as a witness for the State. During the examination, T.W. gave a similar account of the alleged offense, but she told Parra Robinson had only touched her "private parts" through her clothes. The results of T.W.'s genital and anal examination were "normal." However, Parra testified this was not conclusive proof T.W. had not been sexually abused. According to Parra, a child who is examined immediately or within a few days of being digitally penetrated is more likely to display physical signs of abuse such as bruising. However, if days or weeks pass before the child is examined, there may be no detectable physical abnormalities.

T.W's mother testified for the defense. In July 1997, she telephoned T.W.'s grandmother from jail and accused Robinson of "messing with her children." Shortly after this conversation, T.W.'s grandmother asked T.W. about the allegations. T.W. confirmed the allegations of sexual abuse were true. After Robinson was charged and indicted, T.W.'s mother recanted the allegations of sexual abuse, claiming she made the whole story up to get even with Robinson because he would not give her money for drugs and refused to bail her out of jail. T.W.'s mother and Robinson both testified that she had made numerous false reports to the police in the past when she was upset with Robinson.

T.W.'s mother also claimed she made T.W. and her sister say they had been abused by Robinson. In an attempt to get her two daughters to take back their allegations of sexual abuse, T.W.'s mother gave the girls a tape recorder and encouraged them to do the right thing. By this, T.W.'s mother meant the girls should say on the recorder they had not really been abused by Robinson. T.W. and her sister complied and the tape was admitted as evidence.

After the jury found Robinson guilty of indecency with a child by sexual contact, Robinson pled true to an enhancement paragraph for a previous felony conviction, and he was sentenced to sixty years imprisonment and a $10,000 fine. Robinson filed a motion for new trial, which was overruled by operation of law. He appeals his conviction in three points of error.

Legal Sufficiency

In his first point of error, Robinson argues the evidence is legally insufficient to support the verdict because the State failed to prove the date of the offense and the culpable mental state required for indecency with a child. We disagree.

Standard of Review

In assessing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to 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). We review all evidence the jury was allowed to consider, even evidence improperly admitted. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). Because the jury is the sole judge of witness credibility and the weight given to testimony, we will not substitute our judgment for the jury's. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997). Likewise, evidentiary discrepancies are within the jury's province to resolve and will not result in reversal as long as there is "enough credible testimony to support the verdict." Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert denied, 522 U.S. 832 (1997).

Discussiona. Date of Offense

Robinson argues the State failed to offer any evidence to prove the date of the offense. The State, on the other hand, points to the testimony of various witnesses and argues the totality of this evidence is sufficient to prove the offense occurred "on or about" the date alleged in the indictment. We agree with the State.

It is not necessary for the State to prove an offense occurred on the specific date alleged in an indictment. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997). The State is only required to prove a date "anterior to the presentment of the indictment and within the statutory limitation period." Id. at 256; Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989). The statute of limitations for indecency with a child by sexual contact is ten years from the victim's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(A) (Vernon Supp. 1999). Both parties agree limitations is not a concern in this case. Instead, the relevant question here is whether the State proved the offense occurred anterior to the presentment of the indictment.

The indictment in this case, presented March 11, 1998, alleged the offense took place "on or about" December 31, 1996. T.W.'s grandmother and mother both testified they had a telephone conversation on July 3 or July 4, 1997. In this telephone conversation, T.W.'s mother accused Robinson of abusing her daughters. Based on this information, T.W.'s grandmother spoke with T.W. and T.W.'s sister and then took both girls to three different hospitals for medical examinations in July 1997. During one of these examinations, T.W. told Dr. Parra that Robinson had touched her private parts. Shortly after that, T.W. gave the police a signed statement describing the offense. Finally, Robinson himself testified he first learned of the charges in September 1997. All of these dates are anterior to the presentment of the indictment. Therefore, the evidence was legally sufficient to prove the date of the offense. We overrule this point.

b. Intent

Robinson also contends the evidence presented by the State is legally insufficient to prove he acted with the intent to gratify his sexual desire. He argues the evidence is insufficient because: (1) T.W.'s testimony was inconsistent as to whether she was touched on top of her clothing or underneath; (2) Dr. Parra's examination of T.W. was normal; and (3) the evidence supports an innocent touching as much as it does touching with the intent to gratify sexual desire. Thus, according to Robinson, intent was not proven beyond a reasonable doubt. We disagree.

Intent to gratify the sexual desire of any person is an essential element of indecency with a child. Duwe v. State, 642 S.W.2d 804, 805 (Tex. Crim. App. [Panel Op.] 1982). However, intent may be inferred from the defendant's conduct and surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981).When confronted with conflicting inferences regarding a defendant's culpable mental state, we must presume "the trier of fact resolved [the] conflict in favor of the prosecution," and we "must defer to that resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (quoting Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990)).

Here, T.W. testified Robinson touched her "middle part" with his fingers while her mother was not at home and her sisters were in another room. This is consistent with the testimony of Dr. Parra, who said T.W. told him Robinson touched her privates. The only controverting evidence was the testimony of T.W.'s mother, a drug addict, and Robinson, who denied any sexual contact with the child. While T.W.'s testimony was slightly inconsistent and unsophisticated, she provided enough detail about the touching and the circumstances in which the touching occurred that a reasonable jury could have inferred Robinson possessed the requisite intent to commit the offense. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) ("child victims of violent crimes [are not expected] to testify with the same clarity and ability as is expected of mature and capable adults."). Finally, Robinson's distinction between touching a fully clothed child and an unclothed child is not determinative on the issue of sexual contact. See Guia v. State, 723 S.W.2d 763, 766 (Tex. App.--Dallas 1986, pet. ref'd) (mere interposition of layer of fabric did not prevent occurrence of sexual contact for purposes of indecency with child). We therefore overrule Robinson's first point of error.

Factual Sufficiency

In his second point of error, Robinson argues the evidence is factually insufficient to support the jury's verdict. Specifically, he contends his testimony and that of T.W.'s mother greatly outweigh the State's evidence because T.W.'s testimony and statements were inconsistent, rehearsed, and staged. We disagree.

Standard of Review

In reviewing for factual sufficiency, we examine all of the evidence introduced at trial to determine if the verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We do not view the evidence in the light most favorable to the prosecution. Clewis, 922 S.W.2d at 129. Contradictions in the testimony of witnesses are resolved by jurors as triers of fact because they are in the best position to observe the demeanor of the witnesses and to evaluate their credibility. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). We do not judge the credibility of witnesses. Id. We instead defer to the jury's decision and do not substitute our judgment for its merely because we believe a different result is more reasonable. Clewis, 922 S.W.2d at 135 (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986)).

Discussion

Essentially, Robinson asks us to disbelieve the child victim based on the testimony of her drug addicted mother. We, however, decline to make such credibility choices from a cold record. See Johnson, 23 S.W.3d at 8 n.9. While some assessment of credibility is permissible, it is only appropriate where the record clearly reveals a different result is necessary. Johnson, 23 S.W.3d at 8. Here the record does not suggest such a result. T.W.'s testimony was relatively consistent with what she told Dr. Parra a year earlier and Parra testified to this. Moreover, the jury could have attributed any inconsistencies in T.W.'s testimony to the passage of time since the offense and her age. Finally, the fact that T.W. went to "court school" does not detract from her credibility because, according to T.W.'s sister, the purpose of "court school" was to familiarize them with the courtroom and where the jury, judge, and everyone would sit during the trial. We hold the jury verdict is not so against the great weight and preponderance of the evidence as to be clearly unjust and wrong. We therefore overrule Robinson's second point of error.

Ineffective Assistance of Counsel

In his third point of error, Robinson argues his court appointed trial attorney rendered ineffective assistance because she was unable to locate additional witnesses Robinson himself had subpoenaed and wished to call. We disagree.

Standard of Review

We review an ineffective assistance of counsel claim using the two prong test in Strickland v. Washington, 466 U.S. 668 (1984). In determining whether trial counsel was effective, we look at the "totality of the representation" rather than "isolated acts or omissions," and we apply the test "at the time of the trial, not through hindsight." Chavez v. State, 6 S.W.3d 56, 60 (Tex. App.--San Antonio 1999, pet. ref'd). To prevail, a defendant must show by a preponderance of the evidence: (1) the performance of his trial counsel was deficient, and (2) the outcome of the trial was different as a result of the deficient performance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Allegations of ineffective assistance of counsel must be firmly founded in the record and "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); Jackson, 877 S.W.2d at 771.

Discussion

Robinson had the burden of rebutting the presumption that his counsel's decision not to call additional witnesses was not reasonable trial strategy. As the State correctly points out, there is nothing in the record to suggest it was not. The mere fact that trial counsel chose not to call two witnesses that her client wished to call does not overcome the presumption of effectiveness. Trial counsel could have reasonably concluded the testimony of these witnesses would not benefit or could possibly hurt Robinson's defense. Because the record in this case is devoid of anything that reflects the trial attorney's reasoning, we must defer to the Strickland presumption that the defense counsel's decisions were part of a sound trial strategy. See Jackson, 877 S.W.2d at 771-72. We therefore overrule Robinson's third point of error.

The judgment of the trial court is affirmed as reformed.

Sarah B. Duncan, Justice

Do not publish

1. The State asks us to reform the judgment to correct a clerical error. As the State correctly notes and the record reflects, the jury found Robinson guilty of indecency with a child by sexual contact as charged in count three of the indictment rather than guilty of aggravated sexual assault of a child. We therefore reform the judgment to state the jury found Robinson guilty of "Indecency with Child by Sexual Contact." See Joles v. State, 563 S.W.2d 619, 622 (Tex. Crim. App. [Panel Op.]1978).