In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00208-CR
______________________________
CORY JOE LOCKE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 23,058
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Cory Joe Locke was convicted in a single trial for the offenses of murder, aggravated kidnapping, burglary of a habitation with intent to commit theft, and aggravated robbery with a deadly weapon. This appeal concerns only his conviction for aggravated kidnapping. The causes have been appealed separately and have been briefed together.
Since the briefs and arguments raised therein are identical in all appeals, for the reasons stated in Locke v. State, cause number 06-06-00210-CR, we likewise resolve the issues in this appeal in favor of the State.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: June 22, 2007
Date Decided: July 3, 2007
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00057-CR
______________________________
MICHAEL EDWARD SHIPP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th Judicial District Court
Marion County, Texas
Trial Court No. F14174
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Michael Edward Shipp was sentenced to twenty years imprisonment in the Texas Department of Criminal Justice-Institutional Division and was ordered to pay a $10,000.00 fine after a jury convicted him of indecency with his step-granddaughter, M.V. On appeal, Shipp argues that the evidence was insufficient to support his conviction and that the trial court erred in admitting a Utah judgment of deferred adjudication for sexual abuse during the punishment phase. Because we find the evidence sufficient to establish indecency with a child and determine that Shipp failed to preserve error with respect to admission of the deferred adjudication, we affirm the trial courts judgment.
I. Legally Sufficient Evidence Supports the Trial Courts Judgment
A. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the jurys verdict to determine whether any rational jury could have found the essential elements of indecency with a child by contact beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.─Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically correct jury charge, Shipp committed the offense of indecency with a child by contact if he engaged in sexual contact with the victim or caused the victim to engage in sexual contact with him, and the victim was younger than seventeen years of age. Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). Sexual contact means any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person if committed with the intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. § 21.11(c) (West 2011). A person acts intentionally with respect to the nature of his or her conduct when it is that persons conscious objective or desire to engage in the conduct; a person acts knowingly with respect to the nature of his or her conduct when that person is aware of the nature of his or her conduct. Tex. Penal Code Ann. § 6.03(a), (b) (West 2011).
B. Factual Background and Analysis
The testimony of a child victim alone is sufficient to support a conviction for . . . indecency with a child. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.─Texarkana 2006, pet. refd); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.─Fort Worth 2007, no pet.); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.─Houston [1st Dist.] 2004), affd, 206 S.W.3d 620 (Tex. Crim. App. 2006); see Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005).
Six-year-old M.V. testified at trial to the actions committed by Shipp. She told the jury that Shipp touched her underneath her panties on her teetee, which she identified as her vaginal area, while she was sitting in his lap. M.V. stated that this type of touching occurred a whole bunch of times and that Shipp instructed her dont tell anybody because its a secret. M.V. also recounted that Shipp had once touched my teetee and made me touch his weewee. M.V. said Shipp would take her hand, place it inside of his pants and pushed and pulled it, and he made me touch it. After this incident, M.V. washed her hands because they were sticky. She then told [her] mama.
M.V.s mother, Tamara, testified that she was watching television when M.V. approached her and asked, Momma, can I talk to you? Tamara said M.V. told me that her grandfather Mike Shipp had been touching her on her teetee inside her panties and that she told him to stop and that he wouldnt stop doing it. And he told her that it was a secret, not to tell anyone. After the outcry, Tamara stated M.V. was real upset and crying. Tamara went to the police station immediately.
In this case, the jury was free to believe the testimony of M.V., which established that Shipp touched the childs vaginal area and caused her to engage in sexual contact. The jury could find these acts were done with specific intent to arouse or gratify Shipps sexual desire because Shipp asked M.V. to keep the abuse a secret, repeated the sexual contact many times, and because M.V.s testimony regarding the need to wash her hands indicated Shipps sexual gratification. We find the evidence legally sufficient[1] to establish each element of indecency with a child by contact beyond a reasonable doubt.
We overrule Shipps first point of error.
II. Shipps Complaint of the Admission of Deferred Adjudication Was Not Preserved
After the jurys verdict on guilt/innocence, Shipp became aware of the States intent to introduce a DEFERRED JUDGMENT AGREEMENT AND ORDER from the State of Utah stating that Shipp had enter[ed] a plea of guilty to the charge(s) of: Count 1: SEXUAL ABUSE OF A CHILD, a second degree felony as contained in the Information filed in the above named Court. Despite the plea, the Utah court plac[ed] the guilty plea to the above counts in abeyance and cause[d] it not be entered upon the record of the Court. However, before doing so, Shipp signed the order and averred in writing, By entering this guilty plea, I admit, that I committed the conduct charged in the information.[2] Ultimately, because Shipp completed the requirements set forth in the deferred judgment agreement, the sexual abuse charges were dismissed.
Prior to the commencement of the punishment phase of the trial, the following exchange occurred:
[Defense Attorney]: . . . I would like to make an objection or a request out of the presence of the jury.
THE COURT: Okay, youve got a motion?
[Defense Attorney]: Ive got a motion, Your Honor. . . . Subsequent to the order being entered that was entered in Utah that the Prosecutor has, Mr. Shipp lived out the three-year abeyance period, and the case was dismissed. A copy of the order of dismissal is not in the record, but I was going to put him on the stand under oath, if you would allow me to do that.
[The State]: Judge, Ill stipulate that it was dismissed pursuant to the plea bargain agreement. It doesnt make any difference under 3007. The Court can offer any evidence, including unadjudicated offenses and offenses which were dismissed or rejected if the Jury believes beyond a reasonable doubt. Thats 3707. I can show you the paragraph if you want.
THE COURT: I understand. Does that satisfy the Defendants offer?
[Defense Attorney]: That satisfies my offer, Your Honor. We would agree to that stipulation that the case was dismissed --
[The State]: And Ill stipulate to that....
[Defense Attorney]: With that stipulation, I would object not to the facts of the case from coming in as an unadjudicated offense, but to the judgment itself coming in showing a criminal proceeding that was ultimately dismissed, and would make that objection outside of the presence of the jury.
THE COURT: The objection is overruled.
The statute referred to by the State during its argument was Texas Code of Criminal Procedure Article 37.07, Section 3(a)(1), which states:
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010).
On appeal, Shipp argues that:
[f]or the exhibit to be admissible as a Texas judgment under Art. 42.01, Code of Criminal Procedure, it would have to contain an adjudication of guilt or to be admissible as a Texas order deferring adjudication under Art. 42.12, Sec. 5, Code of Criminal Procedure, it would have to make a judicial finding that the evidence is sufficient to substantiate the guilt of the accused. Appellant urges that the trial court abused its discretion when it admitted the exhibit into evidence because it is neither evidence of an adjudication of guilt nor does it contain a finding that the evidence in the Utah case substantiated the guilt of Appellant.
Points of error on appeal must correspond or comport with objections and arguments made at trial. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.─Texarkana 2005, pet. refd) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)). Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review. Id.; see Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). We find that Shipps point of error on appeal, that the Utah judgment not be admitted because it did not satisfy the standard of what a Texas judgment should contain, was not made to the trial court below prior to the exhibits admission.[3] Therefore, Shipp failed to preserve this point of error below.
Shipps last point of error is overruled.
III. Conclusion
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: July 12, 2011
Date Decided: July 28, 2011
Do Not Publish
[1]Shipps briefing argues that [t]he facts stated in the testimony of [M.V.], when taken in a neutral light, lead one to ask how the offense could have been committed since other adults were close by at all relevant times. As set out in the Statement of Facts above, it was the childs testimony that Appellant, with one exception . . . always engaged in sexual contact while she was sitting on his lap or on his leg in a chair in the close presence of numerous other adults. Shipps argument ignores the standard of review requiring us to view the evidence in a light most favorable to the verdict. Further, the jury was free to find that Shipp engaged in sexual contact despite the presence of adults in the vicinity.
[2]Shipp also argues that the exhibit contained no evidence of guilt. We find this argument has no merit considering Shipps statement that he did, in fact, commit sexual abuse of a child. A judicial confession alone is sufficient to satisfy the requirements of Article 1.15. Menefee v. State, 287 S.W.3d 9, 1315 (Tex. Crim. App. 2009).
[3]Although such a complaint was included in Shipps motion for new trial, an objection to the admission of evidence is not properly made in a motion for new trial, because such an objection must be presented in a timely manner prior to the admission of the evidence. See Tex. R. App. P. 33.1; Kane v. State, 173 S.W.3d 589, 59293 (Tex. App.Fort Worth 2005, no pet.).