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Opinion filed December 13, 2007
In The
Eleventh Court of Appeals
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No. 11-05-00244-CR
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CHRISTOPHER WAYNE MEREDITH A/K/A
CHRISTOPHER HAWLEY, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 15322-B
O P I N I O N
The jury convicted appellant of one count of aggravated sexual assault of a child and two counts of indecency with a child. The trial court assessed his punishment at confinement for life on the aggravated sexual assault conviction and for terms of fifty years each on the convictions for indecency with a child with the three sentences to run concurrently. We affirm.
Background Facts
The victim D.M. was appellant=s daughter. The indictment charged appellant with committing aggravated sexual assault of a child by penetrating D.M.=s female sexual organ with his finger. The two charges of indecency with a child involved allegations that appellant touched the genitals and breasts of D.M. with his finger and hands with the intent to arouse and gratify his sexual desire.
With regard to the charged offenses, D.M. testified about an episode where appellant bathed her. This event occurred when D.M. was ten years old. Appellant entered the bathroom while D.M. was taking a bath. D.M. testified that appellant washed her vagina with soap and his hand. She testified that appellant stuck his finger in her vagina on this occasion. She asked him to stop because it hurt, but he did not stop. D.M. also testified about other occasions when appellant Atouched [her] boobs@ by Afeeling them.@
The Stated offered into evidence the following written statement signed by appellant:
I have had to give my daughter [D.M.] a bath about three different times. The last time was maybe a couple of months ago. She does not understand the concept of soap. There were times when she would take a bath and come out with dirt still on her face and her arms and hands.
I would go into the bathroom after she was in the bathtub. I lathered her up and washed her with soap. Some was with a rag and some was with my hand. I would wash her on her privates. She never said anything to me about it. I would ask her if she understood how to use the soap and she would say yes.
Appellant alleged in his trial testimony during the guilt/innocence phase that the written statement did not accurately recite the words that he spoke to the detective that took the statement from him. With respect to the bathing allegation, appellant testified that he only bathed D.M. one time. He testified that he showed her how to use a washcloth and soap during this occasion. Appellant acknowledged at trial that he washed her Aprivates@ with a washcloth. He denied molesting D.M. during this episode.
Issues
Appellant raises five issues on appeal. He alleges in his first issue that the trial court erred in allowing the admission of evidence pertaining to extraneous acts. In his second issue, appellant argues that the trial court failed to correctly instruct the jury in the court=s charge regarding the limited purpose for which it could consider the extraneous acts evidence. Appellant challenges the legal and factual sufficiency of the evidence supporting his convictions in his third, fourth, and fifth issues.
Admission of Evidence of Extraneous Acts
Tex. R. Evid. 404(b) provides in part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b) incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not his criminal propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). In order for an extraneous offense to be admissible, it must be relevant apart from supporting an inference of character conformity. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). We review the trial court=s admission of extraneous offense evidence under an abuse of discretion standard. Rankin, 974 S.W.2d at 718. A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules or principles. See Montgomery, 810 S.W.2d at 380. We will uphold the trial court=s ruling if it was correct on any theory of law applicable to the case in light of what was before the trial court at the time the ruling was made. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
The State offered evidence during the guilt/innocence phase of extraneous acts alleged to have been committed by appellant. Appellant challenges the admission of this evidence in his first issue. The extraneous acts evidence falls into three general categories. The first category consists of an allegation that appellant required D.M. to perform oral sex on him in a neighboring county. The second category consists of allegations that appellant touched the breasts of his stepdaughter C.K. on two occasions. The third category consists of allegations that appellant and his wife pressured D.M. to recant her allegations.
D.M. testified that she accompanied appellant to his work site in Callahan County. She stated that appellant took her to the bathroom at the work site and removed her clothes. After appellant removed his clothes, he instructed D.M. to lay on the floor. D.M. testified that appellant made her perform oral sex. D.M. also testified that appellant subsequently showed her pornography at the work site. Appellant acknowledged taking D.M. to work with him one day and showing her pornography at the work site. However, he denied making D.M. perform oral sex on him.
C.K. did not testify at trial. However, her allegations against appellant were placed into evidence through the testimony of others. C.K. made an outcry statement to Officer Eric Katona. C.K. told Officer Katona that appellant had her sit on his lap at which time he rubbed her breasts with his hands. C.K. stated that appellant asked her if it felt good or tickled and that she told him that it did not feel good. C.K. also informed Officer Katona about another episode occurring on the same day when appellant touched her breasts while working on a project for school. In his statement, appellant denied touching C.K.=s breasts intentionally, but he stated that he might have done so accidentally on more than one occasion.
Detective Brian Trail was the lead detective that investigated the allegations against appellant. Detective Trail testified that appellant=s trial counsel contacted him prior to trial to inform him that D.M. had purportedly recanted her allegations. Appellant=s trial counsel provided Detective Trail with a letter written by D.M. that appellant=s wife, Wendy Meredith, had delivered to him. The letter read as follows:
Dear Mr. Fisher[.][1] I=m sorry thing got twisted up[.] I lied about everything and they just made me mad[.] I just want to do something really mean and I made it up[.] [Pl]ease do not be mad at me[.] Sorry[.] I=m sorry I put you in so much trudle [sic].
Sorry[.] Please do not be made [sic] at me!!!
Love [D.M.]
D.M. testified that appellant=s wife told her to write the note. The State offered into evidence recordings of phone conversations between appellant and his wife while he was in jail awaiting trial wherein appellant instructed his wife to obtain a note from D.M. recanting her allegations. Specifically, appellant and his wife discussed that the letter should be addressed to appellant=s trial counsel. In one conversation, appellant stated: ASomebody is going to have to do something and say f--k CPS and go around that and get hold of those f-----g girls. F--k those people.@ His wife replied: ASomebody=s going to have to, and I have a pretty good idea of who it=s going to be. Know what I mean?@ Appellant replied: AEither that or I=m sending the motherf-----s to Taiwan.@ His wife replied: AWe=ll go around it and figure something out. We=ll get it taken care of.@
At the conclusion of jury selection, the State advised the trial court that it intended to offer evidence of the extraneous acts at trial under several of the exceptions listed in Rule 404(b). The trial court ruled that the evidence of extraneous sexual acts would be admissible based upon its determination that it was probative of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. The trial court also concluded that the evidence of witness tampering would be permitted based upon the determination that it was probative of the commission of the charged offenses.
As discussed above, the State offered evidence of different types of extraneous acts. Despite the varied nature of the extraneous acts, appellant does not differentiate between the three categories in his analysis of the first issue. Furthermore, the State listed multiple grounds for seeking the admission of this evidence. The trial court announced on the record that it would permit evidence of these extraneous matters on multiple grounds. Appellant only addresses one of the Rule 404(b) grounds (plan) in his brief.
The State correctly notes that D.M.=s allegations of an extraneous sexual assault are admissible under Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2007) irrespective of Rule 404(b). Article 38.37 applies to a sexual offense prosecution when the victim of the alleged offense is a child younger than seventeen years of age. The Article provides that, notwithstanding Rule 404(b), evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child and (2) the previous and subsequent relationship between the defendant and the child.
The evidence of witness tampering is also admissible notwithstanding Rule 404(b). The enumerated Rule 404(b) exceptions are neither mutually exclusive nor collectively exhaustive. Montgomery, 810 S.W.2d at 377. Texas courts have held that criminal acts designed to reduce the likelihood of prosecution, conviction, or incarceration for the offense at issue are admissible under Rule 404(b) to show the defendant=s Aconsciousness of guilt.@ See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996). Attempts by the accused to suppress the testimony of a witness are admissible under the Aconsciousness of guilt@ exception. Rodriguez v. State, 577 S.W.2d 491, 493 (Tex. Crim. App. 1979); Roberts v. State, 795 S.W.2d 842 (Tex. App.CBeaumont 1990, no pet.). AThreats or other attempts at coercion are >hardly the actions of an innocent accused,= and evidence of such is every bit as probative of guilt as would be flight by the accused.@ Peoples v. State, 874 S.W.2d 804, 809 (Tex. App.CFort Worth 1994, pet. ref=d) (quoting in part Rodriguez, 577 S.W.2d at 493). Therefore, Rule 404(b) did not prohibit evidence of appellant=s attempts to coerce D.M. into dropping her accusations against him.
Thus, we are left with the evidence of appellant touching C.K.=s breasts. As noted previously, C.K. was not the victim of the charged offenses. Accordingly, Article 38.37 is inapplicable to C.K.=s allegations. Appellant correctly cites Daggett v. State, 187 S.W.3d 444, 451-52 (Tex. Crim. App. 2005), for the proposition that evidence of the repeated commission of the same offense is not admissible under the Aplan@ exception of Rule 404(b). However, the commission of a similar offense may be admissible under other exceptions listed under Rule 404(b). Evidence of extraneous offenses are admissible to prove the element of intent in a case in which intent is an essential element of the offense and cannot be inferred from the act itself. Williams v. State, 662 S.W.2d 344, 345-46 (Tex. Crim. App. 1983). Appellant was charged with two counts of indecency with a child by engaging in sexual contact with D.M. See Tex. Penal Code Ann. ' 21.11(a)(1) (Vernon 2003). The offense of indecency with a child requires the Aintent to arouse or gratify the sexual desire of any person.@ Tex. Penal Code Ann. ' 21.01(2) (Vernon Supp. 2007). D.M. alleged that appellant touched her breasts on at least three occasions but that he did not say anything when this activity occurred. The trial court could have reasonably concluded that the evidence that appellant had engaged in the same conduct with C.K., along with the comments he made to C.K. when the contact occurred, was admissible to supply the intent element with regard to appellant=s act of touching D.M.=s breasts. See Morgan v. State, 692 S.W.2d 877, 881 (Tex. Crim. App. 1985). We conclude that the trial court did not abuse its discretion. Appellant=s first issue is overruled.
Limiting Instruction
The jury charge contained the following limiting instruction:
The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you, if it does, for the purpose of showing the defendant=s motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident, if any. You cannot consider the evidence unless you find and believe beyond a reasonable doubt that the defendant committed these acts, if any, were committed.
Appellant contends that the trial court erred in providing this instruction because the evidence of extraneous acts was not admissible for any purpose. We have determined that the evidence was admissible. Morever, appellant did not request a limiting instruction when the evidence of extraneous acts was admitted. ABecause appellant did not request a limiting instruction at the first opportunity, the evidence was admitted for all purposes.@ Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). Accordingly, the trial court did not err by giving this instruction in the court=s charge because the evidence was admitted for all purposes and a limiting instruction was unnecessary. Id. Appellant=s second issue is overruled.
Sufficiency of the Evidence
In his next three issues, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11. We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8‑9.
Appellant=s third issue addresses the legal and factual sufficiency of the evidence to support his conviction for indecency with a child pertaining to the allegation that he made sexual contact with D.M.=s breasts. Appellant contends that the evidence supporting this allegation is deficient because there is no evidence that it occurred during the bathing incident. In presenting this contention, appellant attempts to limit the charged conduct to a single bathing incident. Appellant bases this limitation upon an answer provided by Detective Trail on cross-examination. Appellant=s efforts to restrict the review of the evidence to acts only occurring during the bathing incident are not supported by the evidence or the law. D.M. testified that the incidents of breast touching occurred on occasions other than the bathing episode. The indictment did not restrict the charged offenses to a single incident. To the contrary, the indictment alleged that the incidents occurred Aon or about@ July 30, 2004. The Aon or about@ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). Appellant also argues that D.M.=s allegation of breast touching is insufficient because she purportedly did not tell anyone of the alleged incidents prior to trial.
Appellant=s fourth issue attacks the sufficiency of the evidence supporting the jury=s determination that he engaged in sexual contact with D.M.=s vagina with the intent to arouse or gratify his sexual desire. He contends that there is no evidence of any conduct or remarks on his part that evidenced his being aroused. Appellant argues that the evidence simply shows that he gave his daughter a bath. In the context of indecency with a child, the fact-finder can infer the requisite intent to arouse or gratify from conduct, remarks, and the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). The intent to arouse or gratify may be inferred from conduct alone. Id. No oral expression of intent or visible evidence of sexual arousal is necessary. See Scott v. State, 202 S.W.3d 405, 408 (Tex. App.CTexarkana 2006, pet. ref=d). Appellant=s act of giving a bath to a child at the age of ten is conduct from which a rational jury could have inferred an intent to arouse or gratify sexual desire from the act itself. See Scott, 202 S.W.3d at 408-09 (applying medical cream to an eleven-year-old child=s vagina).
In his fifth issue, appellant challenges the sufficiency of the evidence supporting his conviction for aggravated sexual assault. He contends that there is no evidence of a criminal intent by him in bathing his daughter. Unlike the offense of indecency with a child by engaging in sexual contact, the offense of aggravated sexual assault does not require an intent to arouse or gratify anyone=s sexual desire. See Tex. Penal Code Ann. ' 22.021(a)(1)(B)(i) (Vernon Supp. 2007) (A person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means.).
The issues of whether or not appellant engaged in the conduct alleged in the indictment are matters that primarily turn upon the jury=s determination of D.M.=s and appellant=s credibility. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.CAustin 2003, pet. ref=d); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.CDallas 2002, pet. ref=d). Appellant=s intent Ato arouse and gratify [his] sexual desire@ could be inferred from his act during the bathing of D.M. Montgomery, 810 S.W.2d at 396. Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant committed the charged offenses. Furthermore, the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust nor is there conflicting evidence that is so strong that it nullifies the jury=s verdict. Appellant=s third, fourth, and fifth issues are overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
December 13, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]AMr. Fisher@ was appellant=s trial counsel.