IN THE
TENTH COURT OF APPEALS
No. 10-98-126-CR
TONY LYNN BURNHAM,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court # 97-142-CR
O P I N I O N
Tony Lynn Burnham was convicted of bail jumping—failure to appear. See Tex. Pen. Code Ann. § 38.10 (Vernon 1994). The court assessed punishment at twenty-five years’ imprisonment. He appeals, asserting that the evidence is factually insufficient to support his conviction. We will affirm the judgment.
FACTS
In 1997, Burnham was arrested for burglary of a habitation. See id. § 30.02 (Vernon 1994 & Supp. 1999). He was released from custody on a $3,000 bond. He furnished the sheriff’s office with a Fort Worth address as his residence, but gave a different address, one belonging to his sister, to the bail bondsman, Frankie Chapman. Burnham did not give either the Sheriff’s office or the bail bondsman his parents’ address.
On February 26, 1997, Burnham was indicted for the burglary offense and his bail was raised to $25,000. Notices of a court date for arraignment were mailed to the address he had given to the sheriff’s office and to Chapman. The notice sent to the address given to the sheriff’s office was returned as undeliverable with the notation, “no such number.” Chapman received the notice mailed to his office and sent an additional notice to the address he had been given. That notice was not returned. Deborah Sauceda, Burnham’s sister, testified that she received the notice but did not give it to Burnham until after the court date had passed. She testified that she and Burnham had a fight, after which he moved out of her house, and she was unable to contact him. Several of Burnham’s family members testified that he was surprised and angry when he found out about the missed court date.
Deanne Martinez, Chapman’s employee, testified that she spoke with Burnham on the phone two times prior to the court date and reminded him of it on both occasions. She also explained to Burnham that his bail had been raised to $25,000. According to Martinez, Burnham said he would take care of making the new bond. However, there is no record of those conversations. Burnham did not appear for the arraignment and was later arrested and charged with “bail jumping—failure to appear.”
SUFFICIENCY OF THE EVIDENCE
In conducting a factual-sufficiency review, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Harris v. State, 994 S.W.2d 927, 932-33 (Tex. App.—Waco 1999, pet. ref’d) (citing Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997), and Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). When performing our review, we give due deference to the fact finder’s assessment of the weight and credibility of the evidence. Id. (citing Calhoun v. State, 951 S.W.2d 803, 810 (Tex. App.—Waco 1997, pet. ref’d)). We will find the evidence factually insufficient only where necessary to prevent manifest injustice. Id.
Section 38.10 of the Penal Code provides:
(a) A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.
Tex. Pen. Code Ann. § 38.10(a). Burnham concedes that he failed to appear. He disputes that the evidence is sufficient to establish that such failure was intentional or knowing.
The evidence shows that Burnham gave the Sheriff’s office a false address. Although Burnham’s sister testified that she did not give him the mailed notice, and his family members testified that he was surprised and angry that he had missed the court date, Martinez testified that she told him of the date in a phone conversation the week before he was to appear. Although there is no documentation of this conversation, Burnham’s father corroborated this testimony by testifying that he took Burnham to a pay phone to call Chapman’s office once a week, including the weeks prior to the arraignment date. The jury could have chosen to believe that Burnham was informed of the increase in bail and the court date and intentionally chose not to appear. The jury also could have believed that Burnham’s sister and other family members were mistaken when they testified that Burnham did not know of the court date.
Considering all the evidence, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Harris, 994 S.W.2d at 932-33.
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed January 19, 2000
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historical facts that depend on credibility choices, but review its application of the law of probable cause de novo. Id. Because probable cause to support the issuance of the warrant is determined from the “four corners” of the affidavit alone, there are no credibility choices to be made by the trial court in examining the sufficiency of an affidavit to establish probable cause. Wynn, 996 S.W.2d at 326-27; see Massey, 933 S.W.2d at 148. Thus, we review the court’s ruling on the motion to suppress de novo. Wynn, 996 S.W.2d at 326; Wachter, 961 S.W.2d at 600. That is, we apply the same standard that the trial court applied when it evaluated the magistrate’s decision to issue the search warrant on the basis of the challenged affidavit.
That standard requires us to examine the totality of the circumstances when considering whether the facts alleged in the affidavit establish probable cause. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Ramos, 934 S.W.2d at 362-63. The issuing magistrate is entitled to draw reasonable inferences from the facts stated in the affidavit, and we, as a reviewing court, are required to accord those inferences great deference. Ramos, 934 S.W.2d at 363; Wynn, 996 S.W.2d at 326-27. If “the magistrate had a ‘substantial basis for ... conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more,” and we should find the affidavit sufficient. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)).
The affidavit in support of a search warrant
In the affidavit supporting her request for a search warrant, dated November 23, 1998, Hix relayed the information from her November 19 interview of T.H. and K.H., stating, in part:
6.[T.H.] began to tell the Affiant that on 11/09/98, Stephen dropped off all the other children but didn’t drop her off. Instead Burke drove to the city park. [T.H.] stated that Burke pulled over and showed her a small box. Burke opened the box and removed a necklace. [T.H.] stated that she hugged Burke for giving her the necklace and he then put the necklace on her. [T.H.] stated that after Burke put the necklace on he kissed her on the back of the neck. [T.H.] stated that Burke told her that he was not joking. [T.H.] pushed him away and Burke drove her back to school.
7.[T.H.] told the Affiant that Burke keeps nude photos on his dark gray labtop computer that is hooked up the computer in the house, 607 Traci Drive. [T.H.] told the Affiant that Burke showed her some photos that Burke had made. [T.H.] stated that Burke showed her three (3) photos of nude females with her head pasted on them. [T.H.] stated that Burke told her that he bets thats what her body looked like naked. [T.H.] stated that Burke told her that he had the pictures hidden so that he can look at them and think of her. [T.H.] told the Affiant that Burke has shown her a movie of the Internet of people having sex.
8.[T.H.] told the Affiant that she spoke to her little sister, [K.H.], and discovered that Burke had touched her genitals.
9.At approximately 1030 hours, Affiant met with [K.H.] and [her mother] at the Police Department. Affiant asked [K.H.] to tell her about Burke. [K.H.] stated that she liked Burke until he did something bad to her she didn’t like. [K.H.] stated that she was playing games on the computer at the Burke’s house and Stephen was present in the room. [K.H.] stated that Stephen began reading her nasty stories and showing her pictures of naked people having sex. [K.H.] told Affiant that as Burke read the stories he began to rub her legs and then worked his hands over the private areas. [K.H.] stated that she moved so he would stop. Burke then showed her a picture of a girl, 4 to 5 years of age. The picture was of a blonde little girl with her leg wide open. Burke then showed her a picture of two nude females getting on a bed and told [K.H.] that it reminded him of her and [T.H.]. [K.H.] then stated that Burke put his hand under her shorts and panties and then put his finger inside her vagina. Burke continued to feel the rest of her body. [K.H.] stated that Burke would pull his hand out and lick his finger and then place his hand back under her panties and inside her part, vagina.
10.[K.H.] stated that the above offense happened between September 1997 and Halloween 1997.
Is the affidavit sufficient to show probable cause?
Burke argues that the affidavit is insufficient because the only facts that would tend to show that he possessed child pornography involved an incident that occurred in September or October 1997, more than a year before the warrant was issued. He argues that this information was stale.
However, the affidavit states that T.H. told Hix she had seen Burke as recently as ten days before the interview. Also, according to the information in the affidavit supplied by T.H., “Burke keeps nude photos on his dark gray laptop computer,” a statement that indicates the continuing and recent presence of pornography.
Furthermore, the affidavit recites that among the photos T.H. said Burke had were three pictures with T.H.’s head “pasted” onto a nude body. Burke does not challenge whether it would be reasonable for the magistrate to conclude that the bodies on which T.H.’s head were pasted were those of a child. The affidavit indicates that Burke thought the bodies were similar to T.H.’s body, i.e., similar to a fifteen-year-old girl’s development. Thus, although not clearly stated in the affidavit, we believe that the magistrate could have reasonable inferred that the photos on which T.H.’s head was superimposed were actually photos of the nude bodies of children. Additionally, given Burke’s other comments about the photo, as related by T.H. through Hix’s affidavit, the magistrate could have reasonably inferred that the pictures contained lewd exhibition of the genitals of the children. See Carmell v. State, 963 S.W.2d 833, 837 (Tex. App.—Fort Worth 1998, pet. ref’d) (finding the area that becomes covered with hair at the time of puberty to be anatomically part of the female genitalia), rev’d on other grounds, ___ U.S. ___, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000). We conclude, then, that the magistrate could have reasonably inferred, based on T.H.’s statements repeated in the affidavit, that Burke had child pornography on his computer in the fall of 1998. See Tex. Pen. Code Ann. §§ 43.25(a)(2), 43.26 (Vernon Supp. 2000); Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Ramos, 934 S.W.2d at 362-63; Wynn, 996 S.W.2d at 326-27.
The facts stated in the affidavit supporting the issuance of the search warrant were not stale. The trial court properly rejected the motion to suppress the evidence seized under the warrant. We conclude that Burke’s first issue is without merit.
DATE OF THE AGGRAVATED SEXUAL ASSAULT
In an attack directed only to his conviction for aggravated sexual assault, Burke claims that there is a fatal variance between the allegations in the indictment and the evidence at trial. The State charged Burke with assaulting K.H. “between the 1st day of September, 1997 and the 1st day of November, 1997[.]” Burke argues that the State was required to prove that the offense took place between these two dates because it did not allege that it occurred “on or about” those dates. C.f. Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App. 1995) (holding that when the State alleges that the date of the offense was “on or about” a certain date, it is only required to show that the offense occurred before the indictment was handed down but within the statue of limitations period). According to Burke, the evidence is insufficient to meet this requirement because K.H. ultimately testified that she was uncertain as to which month the assault took place.
Burke’s complaint is without merit because the evidence is sufficient to sustain a finding that the assault took place within the date range alleged in the indictment. In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)).
K.H. testified that the assault took place in the “fall” of 1997. She was allowed to read to the jury a statement she gave the police, in which she said that the assault occurred at the “end of September, early October.” Additionally, Burke’s confession was read to the jury. In his confession, he admitted to assaulting K.H. “sometime before Halloween” in 1997. Although K.H. vacillated on the date in her testimony, at first asserting that it occurred in November 1997, then in September 1997, and finally admitting that she was not sure of the month, her testimony, her statement that was read to the jury, and Burke’s confession were sufficient to allow a rational trier of fact to find that the assault occurred between the 1st day of September, 1997 and the 1st day of November, 1997. Id. Thus, the evidence is legally sufficient to sustain Burke’s conviction, even without an “on or about” allegation.
Burke’s second issue is meritless.
CONCLUSION
We have found that the trial court correctly denied Burke’s motion to suppress the evidence and that the evidence is legally sufficient to sustain his conviction for aggravated sexual assault under the allegations of the indictment. Thus, having considered and rejected each of Burke’s complaints, we affirm the judgments.
BILL VANCE
Justice
Before Chief Justice Davis
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed August 30, 2000
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