Donald Turner v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DONALD TURNER, )

) No. 08-04-00148-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D03096)

O P I N I O N

Donald Turner appeals his conviction for two counts of indecency with a child. A jury found him guilty and the trial court assessed punishment at life imprisonment. Appellant=s two issues challenge the legal and factual sufficiency of the evidence and he contends the trial court erred in allowing the State to present extraneous offense evidence to the jury during the guilt/innocence phase of the trial. We affirm.

Appellant met the alleged victim, J.S. through her adoptive father. J.S. and her adoptive father, Roy Snyder, have lived in El Paso since moving from Florida in 1996. At the time of trial, Mr. Snyder was an ordained minister and chief executor of a Baptist missionary unit and his adoptive daughter J.S. was thirteen years old. J.S. lived with Mr. Snyder along with his son, Roy II, and an aide/driver named Gregory Ward. Mr. Snyder was disabled as a result of cancer and at the time of trial required dialysis as a result of kidney failure and was awaiting a transplant.

 

J.S. is mentally disabled as a result of brain damage suffered during childbirth and functions at approximately a seven-year-old level. Her disabilities include slow learning, motor skills, and coordination as well as AADD.@ Even though she is mentally disabled, she has full verbal communication abilities and is able to communicate at the level of a child twelve to thirteen years old.

Appellant and J.S.=s father met while both were residing at the Warren Inn in El Paso approximately three to four years prior to trial. The two became Avery good friends.@ Eventually, Mr. Snyder trusted Appellant enough to turn over his credit cards, finances, and banking to him. Because of Mr. Snyder=s health, Appellant would do things for him like shopping and picking up mail.

Even after Mr. Snyder and J.S. had moved from the Warren Inn, the relationship between Mr. Snyder and Appellant continued to grow. At some point during the relationship, Appellant began coming over to J.S.=s home on a regular basis to help her father Aput a computer together@ as well as Ahook it up.@ On four separate occasions during February and March of 2003, Mr. Snyder observed behavior between J.S. and Appellant that caught his attention.

After an alleged incident at the Veteran=s Administration in El Paso, Mr. Snyder Afelt it was time to alert the authorities.@ Also after the final incident, Mr. Snyder confronted Appellant based on conversations that he had with his daughter concerning these four incidents and informed him not to return to his home.

 

Whenever his health was failing, Mr. Snyder would send J.S. to the Child Crisis Center in El Paso. The Child Crisis Center would provide 24-hour care at no cost. Sometime during March of 2003, J.S. was sent to the Child Crisis Center because her father was in the hospital. During the same month, J.S. was taken to Dr. John Guggedahl for an examination.

Dr. Guggedahl had been J.S.=s pediatrician since sometime in 2001. While at the Crisis Center, J.S. complained that her breasts hurt. When asked why, J.S. told a caseworker that Aa man had touched them.@ The caseworker, Ms. Margarita Avalos, notified Child Protective Services. A caseworker from the Child Crisis Center brought J.S. to Dr. Guggedahl=s office as a result of her statements for an examination to determine possible sexual abuse. Dr. Guggedahl asked J.S. about the incident and she told him that Aa friend of the family . . . [who] was in the house to fix the computer@ had touched both her breasts and her vagina.

In Issue One, Appellant challenges the legal and factual sufficiency of the

evidence to support the jury=s finding that he committed the offense of indecency with a child. More specifically, he challenges the evidence supporting the jury=s findings that: (1) he was the individual who engaged in sexual contact with J.S.; (2) the touching occurred in El Paso; and (3) he had the specific intent to arouse or gratify his sexual desire.

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view 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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witness, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).

 

Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the Appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Indecency With a Child

A person commits the offense of indecency with a child if he engages in sexual contact

 

with a child younger than 17 years= old. See Tex.Pen.Code Ann. ' 21.11(a)(1)(Vernon 2003). ASexual contact@ is defined to include any touching of the breast or any part of the genitals of a person with intent to arouse or gratify the sexual desire of any person. See Tex.Pen.Code Ann. ' 21.01(2)(Vernon Supp. 2005).

Identity

The gist of Appellant=s argument is that the evidence presented at trial failed to show that he was the person who had inappropriately touched J.S. The identity of a perpetrator may be proven by either direct or circumstantial evidence. See Couchman v. State, 3 S.W.3d 155, 162 (Tex.App.--Fort Worth 1999, pet. ref=d), citing Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986).

In Couchman, a defendant charged with indecency with a child challenged the out of court statements made by the child victim as legally insufficient on the issue of identity. Couchman, 3 S.W.3d at 162. He claimed that he was not the same ATony@ identified in the out of court statements made by the child and that the child never identified him as the perpetrator in court. Id. The court found the evidence sufficient based on: (1) the child=s testimony that ATony@ had touched her in an area where it Awas not okay to touch;@ (2) a relative=s testimony that ATony@ was the only person the child knew with that name; and (3) an in court identification of ATony@ by that relative. Id. at 162 63.

 

Here, viewing the evidence in the light most favorable to the verdict, the evidence shows that J.S. was brought to the office of Dr. Guggedahl after she complained to one of the caseworkers at the Child Crisis Center that her breasts hurt because a man had touched them. During his examination, Dr. Guggedahl asked J.S. who had touched her. J.S. told Dr Guggedahl that Ahe was a friend of the family and that he was in the house to fix the computer.@ J.S.=s father, Mr. Snyder, positively identified Appellant in-court. He further testified that Appellant began to regularly come over to his house approximately an hour before J.S. arrived home from school to help Ahook up the computer.@ He also indicated that J.S. knew him as a family friend. Finally, Mr. Snyder stated that Appellant was Athe one that fondled her, took her to the car, was playing with her at the VA.@ We conclude that a rational finder of fact could have found Appellant to be the individual identified by J.S. beyond a reasonable doubt.

In his factual insufficiency complaint, Appellant argues that the evidence shows that another man, Gregory Ward, who lived in the same household, might have been the individual J.S. was referring to in her statement to Dr. Guggedahl. Appellant first directs our attention to the fact that Mr. Snyder referred to Gregory Ward as a APredator.@ Mr. Snyder explained that his reference to Mr. Ward as a predator arose from an Aex-wife situation@ which was found to be invalid. Mr. Snyder did admit that there were some Aaccusations@ against Mr. Ward arising from his relationship with his own daughter but the State objected and the trial court sustained the objection so there was no further evidence of what those accusations were. However, Mr. Snyder also testified that he had investigated Mr. Ward=s background with both the police department and the Army.

 

Appellant next directs our attention to an incident involving Mr. Ward and J.S. On one occasion, Mr. Snyder found Mr. Ward on his knees in front of J.S. as she was sitting on the couch watching television. The main light in the living room was off. Mr. Snyder later asked Mr. Ward about the incident and he stated that he had only Agone to pick something up.@ Mr. Snyder did state that the situation Adidn=t look good.@ However, Mr. Snyder also indicated that Mr. Ward had his own living quarters which were separate and he was never allowed to be alone with J.S. Further, Mr. Snyder stated that Mr. Ward never escorted J.S. anywhere at any time.

Appellant also points to the testimony of Mr. Snyder wherein he admitted that Mr. Ward Atried to fix the computer,@ represented that he was a computer programmer, and Aplays around with computers.@ Mr. Snyder also made the statement that A>plays= is right. He=s been trying to send his girlfriend an e-mail for three weeks and doesn=t know how to do it.@

Despite any inconsistencies arising from the testimony of Mr. Snyder, the jury was free to resolve any conflicts. See Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998)(en banc) (holding that questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex.Crim.App. 1974). Further, evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). After a neutral review of all of the evidence, we conclude that the evidence is not too weak to support the finding beyond a reasonable doubt nor so contrary to the finding as to be clearly wrong and unjust.

Venue

 

Appellant also challenges the sufficiency of the evidence to establish that the offense occurred in El Paso County. We presume that venue was established in the trial court unless the record affirmatively shows otherwise or unless venue is made an issue at trial. Valdez v. State, 993 S.W.2d 346, 349 (Tex.App.--El Paso 1999, pet. ref=d). Because venue is not a Acriminative fact@ and thus not a constituent element of the offense, it need not be proved beyond a reasonable doubt, but rather, by a preponderance of the evidence. Valdez, 993 S.W.2d at 349. Proof of venue may be established by direct or circumstantial evidence. Id. at 349. Finally, as the trier of fact on the issue of venue, the trial court may make reasonable inferences from the evidence. See Lozano v. State, 958 S.W.2d 925, 929 (Tex.App. El Paso 1997, no pet.). Appellant argues that since Dr. Guggedahl did not testify that J.S. told him where the touching occurred nor that it occurred in El Paso County, the State failed to prove that the touching occurred in El Paso. We must disagree.

Mr. Snyder testified to four specific, separate incidents of Appellant=s behavior which Acaught his attention@ during the time period between February and March, 2003. He also testified that each of these incidents occurred in El Paso County. Mr. Snyder testified that he confronted Appellant based on his conversations with J.S. after he Afollowed him outside to our driveway@ and Atold him . . . not to come back to my home.@

Mr. Snyder also testified specifically to one incident involving Appellant and J.S. which occurred at the Veterans Administration which was located in El Paso. He stated that after talking to J.S. about the incident he Afelt it was time to alert the authorities to a problem.@ He also stated that A[Appellant=s] the one that fondled her, took her to the car, was playing with her at the VA.@

During the relevant time period, Mr. Snyder testified that he had suffered a stroke and also suffered from congestive heart failure. He also stated that he was disabled as a result of cancer and was undergoing dialysis treatment for kidney failure. Mr. Snyder stated that on March 7, 2003, he had to be hospitalized as a result of his heart condition. Officers were dispatched to his home to transport J.S. to the Child Crisis Center.

 

Margarita Avalos, who worked at the El Paso Child Crisis Center during the relevant time period, testified that J.S. was Aone of our regular children@ because Aher father was mostly -- in the hospital most of the time.@ She testified that J.S.=s longest visit lasted approximately thirty days and it was when Mr. Snyder was in the hospital. She also testified that J.S. would be at the Crisis Center approximately six to seven times a month and was Aone of our regular children there.@ Ms. Avalos then testified that J.S. was at the Crisis Center when she made the outcry.

The testimony of Mr. Snyder and Ms. Avalos alone constitute legally and factually sufficient evidence to prove that El Paso was the venue of the offense. Additionally, the severe and continuous nature of Mr. Snyder=s health problems make it even more likely that during the time period these events allegedly occurred, J.S. was present in El Paso County. Consequently, we overrule the legal and factual sufficiency challenge that the State failed to prove the touching occurred in El Paso County, Texas.

Intent to Arouse or Gratify Sexual Desire

Appellant next challenges both the legal and factual sufficiency of the evidence supporting the finding that he possessed the specific intent to arouse or gratify his sexual desire. The requisite specific intent can be inferred from the defendant=s conduct, his remarks, and all the surrounding circumstances. See Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999); Wallace v. State, 52 S.W.3d 231, 234 35 (Tex.App.- El Paso 2001, no pet.). An oral expression of intent is not required, and a defendant=s conduct alone is sufficient to infer intent. Tyler v. State, 950 S.W.2d 787, 789 (Tex.App.- Fort Worth 1997, no pet.).

 

Here, viewing the evidence in the light most favorable to the verdict, the evidence shows that on four separate occasions, Mr. Snyder, the father of J.S., personally observed behavior by Appellant that Acaught his attention.@ The first incident occurred in the home of J.S. Mr. Snyder testified that one day after J.S. returned from school, Appellant went into his daughter=s bedroom and shut the door. He testified that he was in the living room and when he heard the door click, he proceeded to J.S.=s bedroom. He stated that when he opened the door, Appellant was standing beside J.S. After the incident, Mr. Snyder spoke with his daughter and the conversation made him feel Aangry@ at Appellant.

The second incident also occurred in the home of J.S. Appellant was sitting at one end of the table and Mr. Snyder was at the other end. Mr. Snyder testified that when he looked up from his paperwork, Appellant was gone. On that day, Appellant went into the bathroom with J.S. Mr. Snyder testified that J.S. looked Avery embarrassed@ when he saw her coming out of the bathroom that day. He stated that after talking to his daughter about the incident, he felt Aoutraged beyond belief@ and was Aangry@ and that A[he] could have shot him if I had a gun.@

 

On the third occasion, J.S. had returned from school and was sitting on the couch reading a book. Mr. Snyder left the room to turn on a VCR located in J.S.=s room. When he returned, Appellant was standing next to J.S. with his legs touching the couch. As he returned to the room, he saw Appellant Aflip the top of his pants up.@ Mr. Snyder asked J.S. about the incident and after the conversation he Abec[a]me so angry I wanted to drive my truck through his house.@ The final incident occurred at the Veterans Administration in El Paso. Appellant offered to drive Mr. Snyder to his doctor and J.S. went as well. While in the lounge area of the doctor=s office, J.S. asked for a drink. Appellant offered to accompany J.S. from the fourth floor to the third floor where the drink machines were located. Mr. Snyder testified that it should have taken no longer than fifteen minutes, but Appellant and J.S. were gone for over a half an hour. After having a conversation with J.S. about the incident, Mr. Snyder felt it was time to Aalert the authorities to a problem.@ He also confronted Appellant based on his conversations with his daughter and asked him not to return to his home.

Finally, J.S. told Dr. Guggedahl that Aa friend of the family . . . in the house to fix the computer@ had touched her on her breasts and in her vaginal area. Her father, Mr. Snyder, testified that Appellant was the individual who had come over to his house to Aput a computer together, hook it up.@ We conclude that a rational finder of fact could have found Appellant possessed the requisite intent beyond a reasonable doubt.

In his factual insufficiency complaint, Appellant agues that these four incidents provide no evidence, or insufficient evidence, from which a jury could infer that Appellant had the specific intent to arouse or gratify his sexual desire. Appellant directs our attention to the testimony of Mr. Snyder wherein he admitted that after these four incidents he did not have enough evidence to contact the authorities. After a neutral review of all of the evidence on the issue of intent, we conclude that the evidence supporting a finding of intent is not too weak to support the finding beyond a reasonable doubt nor so contrary to the finding as to be clearly wrong and unjust. We conclude the evidence was both legally and factually sufficient as to each element of the offense. Issue One is overruled.

 

In Issue Two, Appellant argues that the trial court erred in allowing the State to present extraneous offense evidence to the jury during the guilt/innocence phase of the trial. Evidence of other crimes or bad acts that a defendant might have committed may not be introduced at the guilt/innocence phase to show that the defendant acted in conformity with his criminal nature and therefore committed the crime for which he is on trial. Lockhart v. State, 847 S.W.2d 568, 570 (Tex.Crim.App. 1992), cert. denied, 510 U.S. 849, 114 S. Ct. 146, 126 L. Ed. 2d 108 (1993). To constitute an extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it. Lockhart, 847 S.W.2d at 573. If the evidence fails to show that an offense was committed or that the accused was connected to the offense, then it is not evidence of an unadjudicated extraneous offense. Laca v. State, 893 S.W.2d 171, 186 (Tex.App.- El Paso 1995, pet. ref=d).

In Laca, this Court found that evidence of appellant being in detention did not constitute unadjudicated extraneous offense evidence because it failed to show what, if any, offense had been committed. The testimony admitted by the prosecutor in this case similarly does not constitute extraneous offense evidence. This testimony was from Claudia Portillo, Appellant=s parole officer. The substance of the testimony is as follows:

Q: How long have you known the Defendant?

A: Two years.

Q: Are you aware of any restrictions involving the Defendant with regards to being in the company of children under age 17?

A: Yes

Q: What is that restriction?

A: To absolutely have no contact with children 17 years of age or younger.

Q: What about with their parents?

A: No contact.

Q: Was the Defendant aware of this restriction in February of 2003?

A: Yes.

Q: Was the Defendant aware of this restriction in March of 2003?

A: Yes

 

This testimony fails to show what crime, if any, had been committed. Therefore, this brief testimony, without more, does not constitute extraneous offense evidence.

At trial, Appellant also objected to the testimony because the probative value of Ms. Portillo=s testimony was substantially outweighed by its prejudicial effect under Tex.R.Evid. 403. The trial court performed a Montgomery balancing test and found that the probative value of the testimony of Ms. Portillo outweighed its prejudicial effect as long as it was limited to certain questions. In reviewing the trial court=s balancing test determination, a reviewing court is to reverse the trial court=s judgment Ararely and only after a clear abuse of discretion.@ Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999), quoting Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1990).

Factors used in balancing the prejudicial and probative value of an extraneous offense under Rule 403 are: (1) how compellingly the extraneous offense evidence serves to make more or less probable a fact of consequence -- a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the juryA>in some irrational but nevertheless indelible way;=@ (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Mozon, 991 S.W.2d at 847; Montgomery, 810 S.W.2d at 389 90.

 

The testimony of Ms. Portillo was highly probative of Appellant=s intent. The testimony indicated that Appellant knew that contact with a child was prohibited. Therefore, it was relevant to show that the questionable behavior of Appellant around J.S. did not have an alternative explanation. Appellant specifically made this an issue at trial. For example, counsel for Appellant questioned Mr. Snyder as to whether Appellant could have entered J.S.=s room after hearing her call out. As to the second factor, while the testimony of Ms. Portillo had the potential to impress the jury, it was not so prejudicial as to affect the jury to act in an irrational manner or to make the jury find Appellant guilty on an improper basis. The limited testimony included only evidence that a restriction existed. Lacking from the testimony was any evidence of any specific conduct by Appellant. With regard to the third factor, the State spent a very limited amount of time developing the testimony. The substance of the testimony was presented in approximately six short questions. Lastly, we agree with Appellant that the State did not need the additional evidence in light of the testimony that J.S. had been touched inappropriately. In this instance, the act alone was sufficient to infer intent. See Tyler, 950 S.W.2d at 789. However, in light of all of the factors, we find that the trial court did not abuse its discretion in concluding that the probative value of this extraneous offense evidence was not substantially outweighed by any prejudicial effect. We overrule Issue Two.

The judgment of the trial court is affirmed.

February 2, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)