Affirmed and Memorandum Opinion filed March 28, 2006.
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In The
Fourteenth Court of Appeals
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NO. 14-04-00773-CR
NO. 14-04-00774-CR
NO. 14-04-00775-CR
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EARNEST DILLARD THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 963,573; 963,574; and 963,575
M E M O R A N D U M O P I N I O N
Appellant, Earnest Dillard Thomas, was charged in three separate indictments with one incident of aggravated sexual assault of a child and two incidents of sexual assault of a child. The cases were consolidated and tried together. A jury found appellant guilty on all charges and assessed punishment at one 55-year and two 20-year concurrent sentences, and a $10,000 fine. Appellant challenges each conviction in four points of error, arguing: (1) the trial court committed reversible error by failing to suppress his written statement, (2) the trial court erred in failing to instruct the jury it could disregard the statement if it found the statement was made involuntarily, (3) the evidence is legally insufficient to support the convictions, and (4) the evidence is factually insufficient to support the convictions. We affirm.
Appellant and his second wife, Everlyn, adopted V.T. when she was two years old. Appellant started molesting V.T. when she was six or seven by going into her room, touching her genitals, and telling her not to tell her mother. The abuse escalated when appellant, V.T., and two of her brothers moved to another town just as V.T. was turning eight years old. Everlyn did not go with the family due to a previous job commitment. V.T.=s room was next to appellant=s at the back of the house and her brothers shared a room near the front of the house. The routine abuse would typically begin by appellant entering V.T.=s room at night, waking her, and telling her to Acome on.@ According to V.T., appellant would then take her to his bedroom, undress her, put her on the bed, and come Aup between [her] legs with his clothes off.@ Appellant would rub his penis on V.T.=s genitals without penetrating her vagina until he ejaculated. This happened two or three times a week during the year they lived at this address.
The family (including Everlyn) moved to Houston when V.T. was almost nine years old. Thereafter, the family moved twice more within a couple of years. In two of the homes, V.T.=s room was next to the master bedroom. The abuse continued, except that it now occurred during the day, when Everlyn left the house (V.T.=s brothers were usually home when the abuse occurred, but either outside or in the living room). Appellant would escort V.T. from her room to the master bedroom. On most occasions, V.T. cooperated without physical resistance, but sometimes she struggled. Appellant would sexually abuse her on the bed or on the floor to the side of the bed. V.T. testified that when appellant was finished, he would wipe off a white substance on her stomach. Appellant usually kept a small washcloth nearby for this purpose.
When V.T. was ten or eleven, appellant started to force V.T. to touch his penis with her hand and to perform fellatio. The first time it happened, appellant drove V.T. to a dead end street a couple of blocks from their home. He took his penis out of his pants, put her hand on it, then Apushed [her] head down on it.@ Only Ararely@ would he ejaculate during this type of abuse. Appellant never wore a condom when he abused his daughter, and V.T. was able to accurately describe his penis in great detail, including the presence of genital warts.
On or about September 1, 2000, when V.T. was thirteen, Everlyn left the house while V.T.=s brothers were outside mowing the lawn. Appellant went to V.T.=s room and told her to Acome on.@ He took her to his room, took her shorts and underwear off, told her to lay on her stomach. He penetrated her anus with his penis. Even though V.T. was crying and yelling Astop,@ he continued his attempt to penetrate farther for a couple of minutes before he stopped. V.T. got up, put her clothes on, went to the bathroom and locked the door.
As time went on, the abuse continued to escalate. When V.T. was 13 or 14 years old, appellant began inserting his penis inside V.T.=s vagina.[1] The first such incident occurred when Everlyn left the house while V.T. was cleaning the kitchen. Appellant took V.T. to his room, had her sit on the floor and said something like Ait is time.@ He then partly penetrated her vagina with his penis. V.T. said that it hurt as he did this, she wanted to cry, and she felt Aused.@ On that occasion, he stopped after a few minutes without ejaculating.
Later, on or about June 24, 2003, appellant entered V.T.=s room and sat down on the chair at the foot of her bed. He pushed V.T.=s head down until her mouth was Aon@ his penis.
V.T. did not tell anyone about the abuse for ten years because appellant told her she would be Asent back where he got [her] and that [her] sisters would look at [her] different [sic].@ Appellant also attempted to coerce V.T. by threatening to tell Everlyn about their relationship if she did not cooperate. Although V.T. was embarrassed by the abuse, she nevertheless told appellant, on one occasion, to tell Everlyn about the sexual activity. Appellant left the room and returned with a video camera. He showed V.T. a recording he had secretly made of the sexual abuse. Appellant threatened to show it to Everlyn. V.T. felt hurt, confused, and embarrassed when she saw the tape.[2]
Eventually, V.T. disclosed the abuse to Everlyn while appellant was at work. Although she became angry, Everlyn did not report the abuse to authorities. Instead, V.T. was sent to live with her sister in Austin. While in Austin, V.T. reported the abuse to Children=s Protective Services (ACPS@). In a subsequent follow-up investigation, a CPS caseworker tried to contact Everlyn by telephone. On the first occasion, Everlyn answered the phone, but denied her identity and said Everlyn was not at home. When the caseworker called again, Everlyn spoke with the caseworker and agreed to bring V.T. to the Children=s Assessment Center (ACAC@).
At the CAC, V.T. was interviewed about the abuse and the caseworker reported some of the details to Everlyn. Everlyn testified she became hysterical when she heard what V.T. had reported. Everlyn then spoke with a detective and signed a written statement.[3] She admitted to police that she had noticed appellant was Aobsessive@ in regard to V.T., and that he always wanted to do everything for the girl. Everlyn further acknowledged that V.T. told her she had been improperly touched by appellant. However, Everlyn suggested that V.T.=s description of appellant=s genital warts might have been due to an accidental glimpse of appellant when he was lying naked on the bed.
V.T.=s medical exam at the CAC was normal. The exam neither supported nor refuted sexual abuse. Although the doctor who examined V.T. testified it was not unusual for there to be no rips or tears in a child=s hymen, especially several months after the abuse (the abuse ended in early or mid-July; the exam was in late September), Everlyn believed from these results that V.T. was still a virgin, and had not been abused.
Motion to Suppress
In his first point of error, appellant contends the trial court committed reversible error by refusing to suppress his written statement. He asserts the statement was involuntary due to coercion.[4]
We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). At a suppression hearing, the trial court is the exclusive trier of fact and judge of witness credibility and the weight to be given to testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We view the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling, and will sustain the ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. We generally consider only the evidence adduced at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). We review de novo the application of law to facts. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
The statement of an accused may be used in evidence if it was freely and voluntarily made, without compulsion or persuasion. Tex. Code Crim. Proc. Ann. Art. 38.21 (Vernon 2005). The test is whether the defendant's will was Aoverborne@ by police coercion. Mason v. State, 116 S.W.3d 248, 257 (Tex. App.CHouston [14th Dist.] 2003, pet. ref'd). In making this determination, we look to the totality of circumstances surrounding a statement=s acquisition. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995).
The only witness at the motion to suppress hearing was the detective who obtained appellant=s statement. He testified that he received a referral to investigate alleged child abuse from CPS on September 24, 2003. On September 29, 2003, appellant came to the CAC to speak with a CPS caseworker. The detective was informed of appellant=s presence, and he went to the CAC conference room where appellant and the caseworker were speaking. He introduced himself and said he would like to speak with appellant. He informed appellant that he was not under arrest, and that his presence there was voluntary. Appellant appeared to understand and did not appear to be under the influence of drugs or alcohol. The detective asked the caseworker to leave the room, and the interview lasted about an hour, during which they walked to the detective=s office. The detective typed a written statement that appellant reviewed, corrected, and signed.[5] Appellant was never read his statutory warnings. Appellant left the CAC after making the statement and was not arrested until October 7, 2003.
The record of the motion to suppress hearing reveals appellant was told he was free to leave, and free to terminate the interview at any time. There was no need for the detective to read appellant his statutory warnings because appellant was not in custody. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 2 (Vernon 2005). There is no evidence that appellant=s interview was not handled in a professional and courteous manner, much less that appellant was coerced. See Mason, 116 S.W.3d at 257 (finding confession not coerced where appellant came voluntarily to police station, left immediately after giving statement, interview lasted two hours, appellant had a break and a drink, and never requested an attorney). Appellant=s argument that the detective=s Amethod@ of taking appellant away from his conversation with a CPS caseworker was Ainherently coercive@ lacks any basis in law or fact. The trial court did not abuse its discretion in refusing to suppress appellant=s written statement. We overrule appellant=s first point of error.
Failure to Instruct the Jury on Voluntariness of Statement
Appellant next argues the trial court committed reversible error in failing to instruct jurors, under section 6, article 38.22 of the Texas Code of Criminal Procedure, that they could disregard appellant=s written statement if they found it was involuntarily rendered.[6] Appellant argues the detective=s testimony can be construed in such a light that the statement was rendered under coercive circumstances. He also argues he was entitled to the instruction as Aa defensive issue raised by the evidence.@
Articles 38.23 and 38.22 of the Code of Criminal Procedure mandate that the jury Ashall@ be instructed not to consider certain evidence admitted at trial unless it believes beyond a reasonable doubt the evidence was obtained in accordance with the law. See Tex. Code Crim. Proc. Ann. arts. 38.22, ' 6, 38.23. Despite this mandate, a trial judge does not err by failing to submit such jury instruction if there is no factual dispute over how the evidence was obtained. See Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (noting that an article 38.23 instruction must only be included in jury charge if there is a factual dispute about how evidence was obtained); Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994) (explaining that before the requested instruction under article 38.22, section 7, is required, some evidence must be presented to the jury raising the issue of voluntariness). A fact issue about whether evidence was legally obtained may be raised Afrom any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.@ Id. (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).
The detective, who was the sole witness regarding the voluntary nature of appellant=s statement during the guilt/innocence phase of trial, testified on cross-examination as follows:
Q. . . . you=re saying that [appellant] wasn=t under arrest?
A. Yes, sir. I told him that he was there on a voluntary basis. That anything B that regardless of what he told me that day he was going to be free to go at the end of it.
Q. So you promised him something?
A. His freedom. That he=s going to be free to leave when we got through with the interview.
* * *
Q. Did you tell him that he had the right to terminate the interview at any time?
A. Yes, sir.
Q. Why didn=t [sic] you tell him he had a right to terminate an interview?
A. Because it was a voluntary interview and he was not required to be there.
The detective further testified that appellant was free to leave Aat any time,@ he never asked to use the phone or bathroom or to speak with anyone, and he cooperated with the detective.
We cannot infer coercion from mere cooperation. There is no evidence contradicting the detective=s testimony and, therefore, no factual dispute to justify requiring the trial court to instruct the jury on voluntariness. See Garza, 126 S.W.3d at 86B87 (finding appellant raised no fact issue at trial to require 38.23 jury instruction when his testimony did not differ significantly from that of police officers, and that Avague suggestions@ or Amere insinuations@ by trial counsel that a fact exists, without more, do not rise to the level of creating a fact issue). The trial court did not err in refusing this charge. See Hughes v. State, 562 S.W.2d 857, 863 (Tex. Crim. App. 1978) (finding no error in refusing jury charge when appellant did not testify or call any witness on the issue of voluntariness and there was no evidence before the jury which raised that issue). We overrule appellant=s second point of error.
Sufficiency of the Evidence
In his final points of error, appellant challenges the legal and factual sufficiency of the evidence supporting each of his convictions. Specifically, he complains the evidence is insufficient because V.T.=s testimony was uncorroborated.
We view the legal sufficiency of evidence supporting a conviction in a light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
Defendant=s convictions under Texas Penal Code sections 22.011 (sexual assault) and 22.021 (aggravated sexual assault) are supportable on V.T.=s uncorroborated testimony because, at the time of the alleged offenses, V.T. was less than eighteen years old. Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005). The State had the burden of proving the following beyond a reasonable doubt:
1. That, on or about September 1, 2000, appellant intentionally and knowingly caused the penetration of V.T.=s anus by placing his sexual organ in V.T.=s anus when V.T. was younger than fourteen years old and not appellant=s spouse, and
2. that, on or about May 24, 2003, appellant intentionally and knowingly caused the penetration of V.T.=s female sexual organ with his sexual organ when V.T. was younger than seventeen years old and not his spouse, and
3. that, on or about June 24, 2003, by intentionally and knowingly causing V.T.=s mouth to contact his sexual organ when she was younger than seventeen years old an not his spouse.
We have already discussed V.T.=s testimony about each of these occurrences in great detail. We find her testimony, alone, provides legally sufficient evidence to support each of appellant=s three convictions. Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.CSan Antonio 1994, pet. ref=d).
In a factual sufficiency review, there is only one question: AConsidering all evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?@ Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). There are two ways the evidence may be factually insufficient: (1) evidence supporting the verdict, considered alone, may be too weak to support a finding of guilt beyond a reasonable doubt or (2) there may be evidence both supporting and contrary to the verdict but the contrary evidence is so significant that guilt beyond a reasonable doubt could not have been found at trial. Id. We find V.T.=s testimony alone is not too weak to support a finding of guilt beyond a reasonable doubt. We further find that the contrary evidence is not so significant that guilt beyond a reasonable doubt could not have been found by the jury. Accordingly, we find the jury was rationally justified, after considering all the evidence in a neutral light, in finding appellant guilty beyond any reasonable doubt.
We overrule appellant=s third point of error, and appellant=s convictions are affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed March 28, 2006.
Panel consists of Justices Hudson, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Everlyn testified she was bedridden for six months after a car accident in July of 2000, and that she could only leave the house with help during this time. She was unemployed from January of 2002, until after V.T. reported the abuse. Her testimony wavered from being Aalways home@ from July of 2000, until the abuse was reported to being AJust about always home.@ She said she never left V.T. alone with appellant because V.T.=s brothers were also home, an account that is consistent with V.T.=s report.
[2] In a search of appellant=s home, police discovered a camcorder. However, no video tapes were found. The police did discover several bottles of wart medication amongst appellant=s belongings; Everlyn confirmed that appellant used the medication to treat his genital warts.
[3] Everlyn admitted she reviewed, signed, and initialed each paragraph of her written statement. She complained at trial that two words in the statement (Aobsessive@ and Asuck@) were not words she used.
[4] Appellant argued to the trial court at the Jackson/Denno hearing that the statement was made while he was in custody. The trial court found otherwise. Appellant does not challenge this finding on appeal.
[5] Appellant admitted in this statement that he and V.T. were Asexually active.@
[6] The State argues appellant has waived this issue on appeal by asking for a Texas Criminal Code of Procedure article 38.23 instruction at trial, rather than one under article 38.22. Whether appellant properly preserved any jury charge error is relevant only if we find error actually occurred. See Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986) (explaining failure to object at trial normally preserves nothing for review, but where jury charge error is first raised on appeal, it will be considered Aunder a more exacting harm analysis if error is found.@). We must, therefore, determine whether there was any error.