SHANNON CHALKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed August 26, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00570-CR
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SHANNON CHALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-01279-S
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OPINION
Before Chief Justice Thomas and Justices Moseley and Lang
Opinion By Chief Justice Thomas
        Appellant waived his right to a jury trial and was convicted by the trial court of aggravated sexual assault of a child under fourteen years of age. The trial court sentenced appellant to seven years' incarceration and assessed a $2,000 fine. In five issues, appellant challenges the trial court's judgment, contending (1) the trial court erred by denying appellant's request to reopen the evidence; (2) the trial court applied erroneous decisional criteria that altered the State's burden of proof; (3) the trial court improperly informed appellant about the availability of community supervision; (4) the evidence is factually insufficient to support the conviction; and (5) the cumulative effect of the trial court's errors requires reversal. We affirm.
Background
 
        D.G., the complainant, was seventeen years old at the time of trial. D.G. testified that during the summer when he was nine years old, his mother, Kimberly Gardner, took him to visit appellant and Tracy Brooks   See Footnote 1  at their apartment in Duncanville, Texas. Appellant and Brooks, who was D.G.'s cousin, lived in the apartment with Brooks's daughter, Destiny, and Brooks's and appellant's daughter, Montana. Although D.G. could not recall the year the visit took place, he agreed, because he was born in October 1989, that the summer of 1999 sounded correct.
        When D.G. and Gardner arrived at the apartment, D.G. began watching Speed Racer in the living room while Destiny and Montana played in their room. Appellant, Brooks, and Gardner began to drink beer and talk. According to D.G., appellant asked Gardner if D.G. could have a drink with a low percentage of alcohol. Gardner said no. Appellant went into the restroom for three or four minutes and then signaled for D.G. to join appellant in the restroom. Appellant put the bottle of alcohol into the restroom cabinet and told D.G. he could “take a couple of swigs.” After appellant left the restroom, D.G. took a drink of the alcohol, but did not like the taste. D.G. then returned to the living room.
        Gardner and Brooks subsequently went to the store to purchase more beer. According to Gardner, they were in a dry area and had to drive some distance to obtain beer. Gardner testified appellant knew how long Gardner and Brooks would be gone to purchase beer. D.G. testified that approximately five minutes after Gardner and Brooks left, appellant picked D.G. up by his neck and pushed him towards the restroom. D.G. tripped over a rug in the restroom and fell down. Appellant then removed his belt and D.G. thought he was in trouble and was going to be spanked. Instead appellant told D.G. to get on his knees and place his stomach over the edge of the bathtub. Appellant then anally raped D.G. After completing the assault, appellant threatened to kill Gardner and Tracy if D.G. told anyone about the assault.
        D.G. testified that after Gardner and Brooks returned to the apartment, D.G. asked Gardner if they could leave as soon as possible. Gardner asked if D.G. was going to be sick, but D.G. told her that he was fine. Gardner and D.G. stayed at the apartment for another hour-and-a-half to two hours. Gardner did not recall D.G. expressing any urgency about leaving the apartment.
        When D.G. was fourteen years old, he told a friend about the assault. He subsequently told Brooks and five other individuals about it. Finally, during a fight with Gardner, D.G. told her about the assault, and Gardner contacted the police.
        Appellant denied the assault and offered his apartment lease to show he did not live in the apartment in Duncanville until August 2000. Appellant testified D.G. asked for a drink of appellant's alcohol and appellant told D.G. to ask his mother. Gardner said no. Approximately fifteen minutes later, D.G. went to the restroom. Appellant opened the restroom door and saw D.G. drinking the alcohol. Appellant told D.G. to come out and show Gardner. Gardner “began screaming and cussing and carrying on,” and appellant told Gardner and D.G. they had to leave. Appellant never saw either Gardner or D.G. again. Appellant contended D.G.'s allegations stemmed from appellant's refusal to allow Brooks's current husband to adopt Montana.
        The trial court found appellant guilty of the offense and appellant brought this appeal.
Reopening of the Evidence
 
        In his first issue, appellant contends the trial court erred by denying his motion to reopen the evidence to establish Brooks served appellant with “child support papers” during trial.
        We review the trial court's decision on whether to reopen the evidence under an abuse of discretion standard. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); Reeves v. State, 113 S.W.3d 791, 794 (Tex. App.-Dallas 2003, no pet.). A trial court must allow the introduction of testimony at any time before the conclusion of argument if it appears it is necessary to the due administration of justice. Tex. Code of Crim. Proc. Ann. art. 36.02 (Vernon 2007). “Due administration of justice” means the trial court should reopen the case if the evidence would materially change the case in the proponent's favor. Peek, 106 S.W.3d at 79; Reeves, 113 S.W.3d at 794. To establish a material change, the proponent of the evidence must show the evidence is more than “just relevant - it must actually make a difference in the case.” Peek, 106 S.W.3d at 79; see Reeves, 113 S.W.3d at 794. Thus, the trial court abuses its discretion by denying a timely motion to reopen if the evidence would materially change the case in the proponent's favor. Reeves, 113 S.W.3d at 794.
        Appellant contends the trial court abused its discretion by not allowing him to reopen and testify Brooks served appellant with child support papers during trial because the evidence established “motive on the part of [Brooks] to orchestrate the instant allegation as part of her overarching plan to deny Appellant custody of his daughter.” However, appellant introduced a letter Brooks wrote to appellant in 2003 requesting that appellant allow Montana to be adopted by Brooks's current husband. In the letter, Brooks threatens that, if appellant did not agree to the adoption, Brooks would “make sure [appellant] spend[s] a long time in prison when [he gets] back to Texas.” Further, Deanna Liles, appellant's fiancée, and appellant both testified about the difficulties appellant had visiting his daughter. Doris McMillan, appellant's mother, testified she had not seen her grandchildren in two years, “since all this came about.” Finally, appellant testified about his volatile relationship with Brooks and of the end of the relationship in December 2000. He testified he stopped paying child support when he was no longer allowed to see Montana and does not currently know where Montana is living. He also testified Brooks requested that he allow Montana to be adopted and he refused. When asked if he knew why D.G. made the allegations against him, appellant replied he did not, but knew he had “systematically been kept away from my daughter, and if in fact [D.G.] was caught up in this because of that, then I feel sorry for him, because he was a victim.”
        There was ample evidence to place before the trial court appellant's theory that Brooks was behind D.G.'s allegations because she did not want appellant to participate in Montana's life and wanted her current husband to adopt Montana. Proving Brooks served appellant with child support papers during trial would have been cumulative of the other evidence offered by appellant to support this theory. Because the additional evidence would not have materially changed the case in appellant's favor, the trial court did not abuse its discretion by denying appellant's request to reopen the evidence. We overrule appellant's first issue.
Shifting Burden of Proof
 
        In his second issue, appellant contends the trial court “employed erroneous decisional criteria that altered the State's burden of proof in contravention of” the Fourteenth Amendment to the United State Constitution. In support of his argument, appellant points to the following statements by the trial court:
Mr. Chalker, we've been in trial for - well, testimony two days, two full days now. Of course, your story and - or testimony. I don't want to call it a story.
 
Your testimony and the boy's testimony are completely opposed, which means it gets down to basically which one I believe. I have not automatically believed the Complainant but I cannot find any reason for him to lie.
 
I can't find any motive for him to have made this up. I can't find any motive for a 17-year-old boy to come in here and tell the world that he was anally assaulted.
 
Based on the credible evidence, I have no choice but to find you guilty, Mr. Chalker, and I do find you guilty as charged of aggravated sexual assault on child under 17 - excuse me, 14.
Appellant argues these statements demonstrate the trial court “turned its decision not upon what was proven by the State but by what was not established by Appellant.” Appellant asserts this shifting of the burden of proof violated his right to due process.
        Generally, to preserve error, a defendant must make a timely and specific objection. Tex. R. App. P. 33.1(a); see Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). Almost every right, constitutional and statutory, may be waived by the failure to object. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (providing that constitutional error may be waived by failure to object); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App.1986). Absent an objection, a defendant waives error unless the error is fundamental - that is, the error creates egregious harm. Ganther v. State, 187 S.W.3d 641, 650 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd).
        Appellant failed to make a timely and specific objection to the trial court's statements or to the allegedly erroneous “decisional criteria” used by the trial court. Further, the trial court's weighing of the evidence as the fact finder, though perhaps not artfully stated, is not the type of error the United States Supreme Court or the Texas Court of Criminal Appeals has found to be fundamental. See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1992); Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.). We overrule appellant's second issue.
Community Supervision
 
        In his third issue, appellant argues the trial court erred by incorrectly informing appellant concerning the availability of community supervision. After appellant entered his not guilty plea, the trial court correctly advised appellant that if appellant was found guilty, he would not be eligible for probation due to his prior record and the nature of the charged offense. Appellant indicated he understood and proceeded to trial. Prior to the punishment phase, the trial court stated it had “told your lawyer when we started this that I would keep an open mind on probation, and I didn't tell him until this morning that that was no longer an option because of what I've already heard.” Appellant contends this statement at the punishment phase demonstrates the trial court “voluntarily and effectively shouldered upon itself the duty to admonish Appellant regarding probation” and, therefore, the trial court was required to admonish appellant at the beginning of trial that “deferred community supervision could have been an option if he entered a plea of guilty or nolo contendre.”
        Appellant cites no authority for the proposition the trial court is required to advise a defendant who pleads not guilty that, if he pleaded guilty instead, he could be eligible for community supervision.   See Footnote 2  Nor have we found any such authority. We overrule appellant's third issue.
Sufficiency of the Evidence
 
        In his fourth issue, appellant asserts the evidence is factually insufficient to support the conviction. The crux of his argument is that inconsistencies in the testimony established D.G. was not credible.
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the evidence demonstrates the proof of guilt is so weak or that conflicting evidence is so strong as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual-sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). However, unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly “causes the penetration of the anus or sexual organ of a child by any means” and the victim is under fourteen years old. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2008). D.G. testified that when he was nine years old, he was anally raped by appellant. Appellant concedes D.G.'s testimony, if believed, is sufficient to support the conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). However, pointing to inconsistencies in the testimony, appellant contends D.G.'s allegations are incredible.
        Although some of the testimony was inconsistent, “[i]t is the sole province of the [fact- finder] to weigh the credibility of the witnesses and the testimony.” Schmidt v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007). The fact finder may believe or disbelieve all or part of any witness's testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998); Davila v. State, 252 S.W.3d 846, 852-53 (Tex. App.-Dallas 2008, no pet.). The evidence was not so obviously weak that appellant's conviction is clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the trial court's judgment. See Marshall, 210 S.W.3d at 625. Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's fourth issue.
Cumulative Error
 
        In his fifth issue, appellant argues the cumulative effect of the trial court's errors require reversal. We have considered, and overruled, each of appellant's issues. Cumulative consideration of the issues raised by appellant does not alter our analysis. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (no authority that “non-errors may in their cumulative effect cause error”). We overrule appellant's fifth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 47
070570F.U05
        
 
        
        
 
Footnote 1 Brooks was Tracy's last name when she lived with appellant. Brooks later changed her name to Tracy Wilson.
Footnote 2 Appellant cites Ex Parte Williams, 704 S.W.2d 773, 777 (Tex. Crim. App. 1986), for the proposition the case should be reversed because the trial court incorrectly advised appellant about the availability of community supervision. Williams addresses whether a plea of guilty or nolo contendre was voluntary following incorrect admonishments by the trial court regarding the availability of probation. Id. It does not stand for the proposition that the trial court had a duty to advise a defendant who is pleading not guilty that community supervision could be available if the defendant changes his plea to guilty or nolo contendre and, therefore, does not support appellant's argument.