IN THE
TENTH COURT OF APPEALS
No. 10-05-00101-CR through 10-05-00117-CR
The State of Texas,
Appellant
v.
Rebekah Faith Stanley, ET AL.
Appellees
From the County Court at Law
McLennan County, Texas
Trial Court Nos. 2004-3921-CR1 through 2004-3933-CR1
and Nos. 2004-3935-CR1 through 2004-3938-CR1
MEMORANDUM Opinion
The State has filed motions to dismiss these seventeen appeals under Rule of Appellate Procedure 42.2(a). See Tex. R. App. P. 42.2(a); McClain v. State, 17 S.W.3d 310, 311 (Tex. App.CWaco 2000, no pet.) (per curiam). We have not issued decisions in these appeals since the Court of Criminal Appeals remanded them to this Court for further proceedings. See State v. Stanley, No. PD-1393-05, 2006 Tex. Crim. App. LEXIS 1816 (Tex. Crim. App. Sept. 20, 2006). The Clerk of this Court has sent duplicate copies of the motions to the trial court clerk. See Tex. R. App. P. 42.2(a); McClain, 17 S.W.3d at 311. None of the Appellees has filed a response. Accordingly, these appeals are dismissed.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Appeal dismissed
Opinion delivered and filed November 1, 2006
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No. 10-04-00072-CR
Jerrel Lee Martinez,
Appellant
v.
The State of Texas,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court # F35145
MEMORANDUM Opinion
Jerrel Martinez was tried before a jury and convicted of one count of sexual assault of a child and two counts of indecency with a child. Tex. Pen. Code Ann. §§ 22.011, 21.11 (Vernon 2003). The jury assessed punishment at twelve years and a $5,000 fine for the sexual assault (count one), five years for one of the indecency counts (count two), and two years for the other indecency count (count three). The trial court entered separate judgments for each of the three counts. The indecency counts were probated for ten years. Martinez appeals, arguing: (1) the trial court erred in not declaring a mistrial after the court made improper comments to the jury; (2) the evidence was legally insufficient to prove the offense of indecency with a child by touching the genitals (count three); and (3) the evidence was factually insufficient to prove the offense of indecency with a child by touching the genitals. We will reverse the judgment and render an acquittal on count three, and affirm the judgments on the other two counts.
Background
The alleged victim was 15 years old on the date of the alleged offense. She testified that she was home alone with her 12 year-old sister when Martinez knocked on the front door. Martinez was a long-time friend and occasional employee of the girls’ father, and he had been around the house earlier that day with the girls’ older brother. The alleged victim testified that Martinez told her that he was there to meet their brother, and she allowed him to come inside and wait. He asked to see the carpet he had previously installed in her bedroom. She led him to her bedroom and turned on the stereo. Martinez asked if she could dance and she danced for him. Afterwards, he sat on the bed next to her and told her how much he liked her and liked being around her. She testified that he then put his hand over her mouth, pushed her onto her back, and warned her that he would hurt her if she said anything. He licked her face, then put his hand under her shirt and touched her breasts. She testified that he then took off her shorts and underwear and licked her vagina. She told him that she thought she heard someone coming. He said he had better go, gave her $25.00, and told her that she was “the sweetest thing he had tasted in Texas.”
Denial of Mistrial
Martinez argues that the trial court erred in not declaring a mistrial after the court made a comment to the jury that it would “hear the other side of the story” from the defense. At the conclusion of the State’s case in chief, the court made the following remarks in the presence of the jury: “Okay. Ladies and gentlemen of the jury, at this time there are a few—we’ll call them administrative matters that have to be dealt with before the defense can begin its part of the case, which is the next thing that will happen for you, the time to hear the other side of the story. So we need to take a recess. . . .” Martinez argues that the court’s remark was an improper comment on his failure to testify and that it created an expectation that the defendant would testify.
The State argues that Martinez’s complaint is not preserved for our review because he failed to request an instruction to disregard. Martinez raised a timely objection to the court’s remarks and made a motion for a mistrial. The court denied the motion and asked defense counsel if he wanted a jury instruction. Martinez’s counsel argued to the court that an instruction should not be given because it would only aggravate the prejudice. Nevertheless, the court instructed the jury that the comment should be disregarded and should not be construed as a comment on the weight of the evidence, the defendant’s right to remain silent, or his right not to present any evidence. Further, the court reminded the jury that there is no burden of proof on the defendant. Martinez’s actions were sufficient to preserve his complaint about the mistrial ruling. Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004); see also Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it”).
We review an order denying a motion for mistrial for an abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A trial court may properly exercise its discretion to declare a mistrial where an instruction to disregard could not cure the prejudice stemming from an event at trial and would not leave the jury in an acceptable state to continue the trial. Young, 137 S.W.3d at 69.
A comment on a criminal defendant's failure to testify violates the defendant's state and federal constitutional privileges against self-incrimination. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). We must view any allegedly improper statement from the standpoint of the jury and decide whether the language was of such character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Id; McGee v. State, 852 S.W.2d 551, 559 (Tex. App.—Tyler 1992, writ ref'd). Considering the remark in its context, we do not believe the jury would have understood it to be a comment on the defendant’s failure to testify. The trial court made the comment before the defense’s opportunity to put on its case. The court’s use of the phrase “other side of the story” appears to have been used as a euphemism for the defense’s case, and it probably would not have been understood by the jury to refer specifically to the defendant’s decision to testify or not to testify.
There is a danger that the jury could infer from the court’s remark that the defense was expected to put on a case or introduce testimony. However, any harm caused by the remark was cured by the court’s instruction. The trial court thus did not abuse its discretion in denying Martinez’s motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We overrule this issue.
Legal and Factual Insufficiency
Martinez argues in his second and third issues that the evidence was legally and factually insufficient to support his conviction on count three for indecency with a child by touching the genitals. We review legal sufficiency by viewing all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
We must first note that the jury charge does not specify any particular manner of touching the genitals. The State introduced evidence of two types of contact with the alleged victim’s genitals: (1) contact between her genitals and Martinez’s mouth and (2) contact between her genitals and Martinez’s hands. As a result, we cannot know whether the jury’s verdict of guilt was based on touching by mouth or touching by hand. However, Martinez’s conduct in touching the victim’s genitals with his mouth was the basis of his sexual assault conviction. Because a conviction for indecency with a child based upon Martinez’s contacting the victim’s genitals with his mouth would implicate double jeopardy, we must determine whether the evidence is sufficient to support a verdict based on Martinez’s touching the genitals with his hand.
There is some evidence that Martinez touched the alleged victim’s vagina with his hand. An outcry witness testified that the alleged victim told her that Martinez had penetrated her private area with his hand as well as his tongue. Another witness testified that he heard Martinez admit to having “got busted” for “rubbing up on her.” However, a witness who interviewed the alleged victim at the Children’s Advocacy Center testified that the alleged victim was vague about where Martinez had touched her and did not say what part of her body he touched. At trial, the alleged victim, in response to three direct questions from the prosecutor, testified (1) that Martinez never touched her vagina with any part of his body other than his mouth; (2) that the only part of her body he touched with his hands was her breasts; and (3) that he never touched her vagina with his hand.
We are mindful that the jury is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness’ testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). In a legal sufficiency review, we are in the position of a final, due process safeguard, ensuring only the rationality of the fact finder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury could have found the outcry witness’ testimony credible. However, her testimony, if believed, is evidence of an out-of-court statement by the alleged victim. The alleged victim’s in-court testimony contradicted that out-of-court statement. It is also possible that the jury could have found Jared Way—the witness to Martinez’s alleged admission—to be credible, even though Way testified that he had been charged with and pled guilty to witness tampering for offering to pay the alleged victim to drop the charges against Martinez. However, Way’s testimony, if believed, is also evidence of an out-of-court statement by Martinez. Way testified that Martinez told him only that he had been “rubbing up on her” and that either he kissed her or she kissed him—a statement that would not necessarily prove that Martinez touched the alleged victim’s vagina with his hand. The jury’s guilty verdicts on the other indecency count (touching the breast) and the sexual assault count (causing her genitals to contact his mouth) demonstrate that the jury believed the victim’s version of those events. It would not be reasonable for the jury to believe the alleged victim’s version of events concerning counts one and two but disbelieve her testimony that Martinez did not touch her genitals with any part of his body other than his mouth.
Viewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could not have found beyond a reasonable doubt that Martinez touched the victim’s genitals with his hands or with any part of his body other than his mouth. We make this assessment because the only evidence tending to support the verdict on count three was directly contradicted by the victim herself.
Finding the evidence legally insufficient to support the verdict on count three, we do not reach Martinez’s factual sufficiency issue. We reverse the count three conviction for indecency with a child by touching the genitals and render an acquittal on that count.
CONCLUSION
We affirm the trial court’s judgments on counts one and two. Finding the evidence legally insufficient to support a conviction in count three, we reverse and render a judgment of acquittal on count three.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurring and dissenting)
Affirmed in part, reversed and rendered in part
Opinion delivered and filed April 13, 2005
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