TIMOTHY HAYDEN PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; and Opinion Filed November 2, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-00967-CR
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TIMOTHY HAYDEN PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-81816-03
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OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Moseley
        A jury convicted Timothy Hayden Phillips of two counts of aggravated sexual assault of a child and assessed punishment at twenty-five years' confinement and a $5,000 fine for each count. In his first issue, Phillips contends the evidence is factually insufficient to support his conviction, and in his second issue, he contends the trial court erred in overruling his objection to admission of certain evidence. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
        The indictment alleged that Phillips “intentionally and knowingly cause[d] the contact of the mouth of [C.P.] . . . by means of [Phillips'] male sexual organ” on or about August 1 and 15, 2002.   See Footnote 1  The evidence at trial showed that the complainant, C.P., was four years old in August 2002, and seven years old at the time of trial. C.P. lived with her maternal grandmother, Deborah Frakes; Stacy (C.P.'s aunt and Frakes's daughter) lived next door with Phillips, her boyfriend. C.P. had a room in Stacy's home and went back and forth between the two homes. There was evidence that, in August 2002, C.P. was “acting out” sexually and had behavior problems. On August 30, 2002, C.P. made an outcry to Frakes that Phillips “had her lick his peepee”; she also briefly described a movie on Phillips's television that depicted oral sex. At trial, on direct examination, C.P. testified that she and Phillips were not alone and, pointing to her mouth, that he did “some bad stuff” to her and it made her feel “icky.” She answered “I forgot” to most questions.
        When Phillips was first interviewed by police officers on August 31, he denied any sexual contact. In a second interview about one year later, he admitted there was a “shower” episode and a “nap” episode. At trial, he testified he had been showering with C.P., had soap in his eyes, and “felt [C.P.] grab his penis and . . . it felt like her mouth was on it and he told her no.” On another occasion, Phillips said, he was taking a nap in the nude, was awakened by C.P.'s mouth on his penis, and then pushed her away. Phillips also testified that C.P. learned this sexual behavior from others, possibly C.P.'s cousin, a boy who was about six months younger than C.P. On cross examination, Phillips agreed that he was “the victim of a four year old little girl” who was “a sexually aggressive child.” He admitted owning adult movies but said he did not watch them with C.P. There was also evidence that Phillips installed a hidden wireless camera in the bathroom but did not tell Stacy about it.
        The jury found Phillips guilty on both counts. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
 
        In his first issue, Phillips contends the evidence is factually insufficient to support his conviction. He argues specifically that the evidence is insufficient as to the mental states and causation elements of the offense.
A.
 
Standard of Review and Applicable Law
 
        “There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jury is free to accept or reject any or all of the evidence presented by either side. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
        To convict Phillips of the first degree felony offense of aggravated sexual assault of C.P., the State must prove beyond a reasonable doubt that Phillips intentionally or knowingly caused the mouth of C.P., a child younger than fourteen years of age and who was not Phillips's spouse, to contact the sexual organ of Phillips. See Tex. Pen. Code Ann. §§ 22.011(c)(1) (Vernon Supp. 2006), 22.021(a)(1)(B)(v), (a)(2)(B) (Vernon Supp. 2006). “A person acts intentionally, or with intent, with respect to . . . a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” Id. § 6.03(a) (Vernon 2003). “A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Id. § 6.03(b) (Vernon 2003). Proof of a culpable mental state generally relies upon circumstantial evidence. Skillern v. State, 890 S.W.2d 849, 880 (Tex. App.-Austin 1994, pet. ref'd). Because mental culpability is of such a nature that it generally must be inferred from the circumstances under which the prohibited act occurred, the trier of fact may infer intent from any facts in evidence that tend to prove the existence of such intent. Id. Knowledge and intent may be inferred from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Skillern, 890 S.W.2d at 880.
        “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” Tex. Pen. Code Ann. § 6.04(a) (Vernon 2003).
B.
 
Discussion
 
        Appellant admitted that two episodes of sexual contact occurred. He argues those episodes were “involuntary” on his part and that he offered a “plausible explanation” for each of them that contradicted C.P.'s outcry testimony. However, the jury heard all the evidence of the surrounding circumstances relating to intent, knowledge, and causation, and we defer to the jury's credibility determinations. See Tex. Code Crim. Proc. Ann. art. 38.04; Goodman, 66 S.W.3d at 287; Saxton, 804 S.W.2d at 914. Considering all of the evidence in a neutral light, we conclude the jury was rationally justified in finding Phillips guilty beyond a reasonable doubt. See Watson, 2006 WL 2956272 at *7. Therefore, we conclude the evidence is factually sufficient to support his conviction, and we resolve Phillips's first issue against him.
 
 
III. ADMISSION OF EVIDENCE
 
        In his second issue, Phillips argues the trial court erred in overruling his objection to the admission of certain evidence because it was hearsay. The State responds the statement was admissible under rule of evidence 107, providing for “optional completeness,” and, even if the trial court erred, it was harmless.
A.
 
Applicable Law and Standard of Review
 
        Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802; Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (per curiam); see Tex. Code Crim. Proc. Ann. art. 38.072, §§1(1), 2(a) (Vernon 2005) (providing exception to hearsay rule of exclusion for out-of-court statement of child abuse victim when requisite statutory conditions are met). Rule of evidence 107 is the rule of optional completeness and provides, in part:
 
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. . . .
 
Tex. R. Evid. 107. It is not error to admit hearsay evidence when it serves to clarify other hearsay evidence elicited by the opposition. Martinez v. State, 749 S.W.2d 556, 560-61 (Tex. App.-San Antonio 1988, no pet.) (citing Jackson v. State, 423 S.W.2d 322, 323 (Tex. Crim. App. 1968)). This hearsay evidence is admissible under rule 107. Bunton v. State, 136 S.W.3d 355, 367 (Tex. App.-Austin 2004, pet. ref'd).
        We review a trial court's decision to admit evidence for abuse of discretion. We do not overturn that decision unless it falls outside the “zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996) (citing Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App.1990) (op. on reh'g)). We uphold the trial court's evidentiary ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
B.
 
Discussion
 
        Frakes's testimony as to C.P.'s outcry, described above, was admitted without objection. Frakes testified that “[m]ore information came out later.” The following exchange then occurred.
 
Q:
 
All right. Let's talk about that. Did she have bad dreams?
 
 
 
A:
 
Yes. She had a bad dream, she would tell me about it right before we had her examined. I called and set that up because I found out a police office or CPS worker had to set it up, because I was concerned. She said she had a bad dream that Uncle Tim -
 
Defense counsel objected as “being hearsay beyond the outcry statement.” The court overruled the objection. Frakes then stated, “That she had dreamed that Uncle Tim was putting his peepee by Aunt JuJu's peepee.” Frakes identified “Aunt JuJu” as her daughter, Julia.
        On appeal, Phillips argues the italicized statement quoted above was hearsay, the trial court erred by overruling his objection, and he was harmed because further out-of-court statements by C.P. about Phillips and sexual conduct reinforced the weight of C.P.'s outcry statement, which Phillips contested.
        The State's argument as to admissibility rests on evidence elicited by Phillips from Phyllis Jackson, the investigating detective, before Frakes's testimony above. On cross examination, Phillips asked Jackson about a sexual assault nurse exam that was performed in October 2002, because Frakes had “provided some information” to Jackson that “gave [her] more concern.” Jackson was asked whether “that more concern” was “that somebody had said that [Phillips] had put his peepee on her peepee?” Jackson responded in the affirmative and was then asked, “And that didn't happen, not based upon one single shred of investigation that you found out, did it?” Jackson responded, “I don't know.” She then testified, “I don't know if it happened. There's no evidence that it did.”
        Jackson's hearsay evidence concerned Frakes's relating to Jackson her concern that another illicit sexual contact had occurred and Jackson's conclusion that there was “no evidence” that such contact had occurred. This testimony constituted part of an act or conversation, that is, the nurse's exam based on Frakes's concern. Consequently, Frakes's later testimony relating C.P.'s statement to her about C.P.'s dream was a clarification of Jackson's hearsay evidence and admissible as “the whole on the same subject” inquired into by the State and thus allowed by rule 107. See Tex. R. Evid. 107.
        Even if the trial court abused its discretion in admitting evidence of C.P.'s dream, we conclude such error was harmless. Any error in admitting evidence is not reversible unless it affected a substantial right of the appellant. See Tex. R. App. P. 44.2(b); Gay v. State, 981 S.W.2d 864, 867 (Tex. App.-Houston [1st Dist.] 1998, pet ref'd); see Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992) (per curiam) (applying former rule 81(b)(2) to improper admission of outcry testimony). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Gay, 981 S.W.2d at 867.
        The evidence concerned a dream that was never asserted to be true; it concerned C.P.'s state of mind, not Phillips's state of mind or conduct. Neither party directs us to further mention of the dream in the testimony, and it was not mentioned in closing arguments. Given the trial testimony relating to C.P.'s outcry, Phillips's initial denial of sexual contact, then admission of it, and other evidence of Phillips's conduct detailed above, we cannot conclude that any error had a substantial and injurious effect or influence in determining the jury's verdict. Accordingly, we reject Phillips's argument that any error was harmful, and we resolve his second issue against him.
IV. CONCLUSION
 
        Having resolved both Phillips's issues against him, we affirm the trial court's judgments.
 
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
050967f.u05
 
 
Footnote 1 The indictment alleged both penetration and contact offenses. The State proceeded on the two contact counts.