COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00487-CR
CHRISTOPHER ADRIAN MILLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Christopher Adrian Miller appeals his convictions of four counts
of aggravated sexual assault of his daughter Madison. 2 We affirm in part and
reverse and render in part.
1
See Tex. R. App. P. 47.4.
2
To protect the anonymity of the child in this case, we will use aliases to
refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d
Background Facts
In late November 2011, Denise Callahan, then a detective with the White
Settlement Police Department, received a report from the Department of Family
and Protective Services concerning Appellant. Detective Callahan telephoned
Appellant, and he agreed to come to the police station for an interview. In the
interview, Appellant admitted to three sexual interactions with his three-month-old
daughter. The first instance occurred around September 6, 2011. Appellant was
watching a pornographic movie while holding Madison on his lap. She reached
for his erect penis, and he “stuck [his] penis to her mouth.” In the second
instance, on or about September 18, 2011, he “more intentional[ly]” allowed
Madison to suck on his penis. The third instance occurred on or about
September 24, 2011, when Appellant was changing Madison’s diaper on a
changing table in her nursery. He “notice[d] that the height of the changing table
was the right height for [him] to put [his] penis under her,” so he placed his penis
“under her butt cheeks and moved back and forth.” He pulled away and
ejaculated onto the floor of the nursery. Appellant eventually admitted what he
had done to his wife and some church members. Some of the church members
then informed the police.
444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936
n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
Detective Callahan went to Appellant’s house, where she spoke to
Appellant’s wife, Stacy. Callahan asked Stacy’s permission to search the house.
Stacy agreed and signed a “permission to search” form.
A crime scene technician used a black light in the nursery. The black light
revealed stains on the floor near the changing table where Appellant stated he
had ejaculated. Callahan then asked Stacy’s permission to remove a section of
the carpet for testing “out of courtesy, because it was a rent[al] house.” Callahan
wrote on the permission to search form, “Removed sample of carpet out of
[Madison]’s room,” and Stacy signed next to the notation.
A few days later, Appellant called Callahan and said that he had
“remembered a fourth incident and that he would like to come talk to [her] about
some additional information.” Appellant returned to the police station and
confessed to having “placed [his] penis on [Madison’s] vagina,” taking a
photograph of it with his cellphone, and “immediately delet[ing] it.” He gave
Callahan his laptop computer that he said he had used to watch pornography
and told Callahan where she could find his phone’s memory card. He told
Callahan, however, that he had reformatted the memory card. Appellant also
consented to a buccal swab.
Forensic tests showed that Appellant’s computer had been cleaned the
day before he brought the computer to the police department using a program
that overwrites files so that they are unrecoverable. The memory card from the
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phone had been reformatted as Appellant had claimed. DNA testing
demonstrated that the stain on the carpet sample was Appellant’s semen.
Appellant was charged with four counts of aggravated sexual assault. He
pleaded not guilty to all four charges. After a trial, a jury found Appellant guilty on
all counts. The jury assessed punishment of a life sentence for each count,
which the trial court ordered to run concurrently. Appellant then filed this appeal.
Discussion
I. Warrantless Search
In Appellant’s first issue, he argues that the State violated his Fourth
Amendment rights by searching his house without a warrant and by exceeding
the scope of Stacy’s consent. He also argues that Stacy’s consent to remove the
carpet sample was invalid because she only rented the house.
Appellant filed a motion to suppress the evidence taken from his house
during the search. After a hearing, the trial court denied the motion. At trial, the
State offered into evidence the permission form signed by Stacy and the carpet
sample obtained during the search. The State argues that Appellant waived this
issue because at trial his attorney stated that he had “no objection” to the
admission of the permission form and carpet sample. When a pretrial motion to
suppress evidence is overruled, the defendant need not subsequently object at
trial to the same evidence in order to preserve error on appeal. Moraguez v.
State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986). However, when the
defendant affirmatively asserts during trial that he has “no objection” to the
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admission of the complained-of evidence, he waives any error in the admission
of the evidence despite the pretrial ruling. Moraguez, 701 S.W.2d at 904; see
Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App. 2013) (holding that
“if from the record as a whole the appellate court simply cannot tell whether an
abandonment was intended or understood,” an “affirmative ‘no objection’
statement will, by itself, serve as an unequivocal indication that a waiver was
both intended and understood”). Because defense counsel specifically stated
that he had “no objection” to the admission of the carpet sample, and because
the record does not plainly indicate an intention not to abandon the claim of error,
we hold that the issue has not been preserved for appeal. We overrule
Appellant’s first issue.
II. Corpus Delicti
In Appellant’s second issue, he argues that the State failed to corroborate
his confession as to Counts One, Two, and Four. 3 An extrajudicial confession by
the accused is insufficient to support a conviction unless it is corroborated.
Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990), cert. denied, 501
U.S. 1232 (1991). The corpus delicti rule is a rule of evidentiary sufficiency that
states that “an extrajudicial confession of wrongdoing, standing alone, is not
enough to support a conviction; there must exist other evidence showing that a
3
In Counts One and Two, the State alleged that Appellant intentionally or
knowingly caused Madison’s mouth to contact his penis. In Count Four, the
State alleged that Appellant intentionally or knowingly caused Madison’s sexual
organ to contact his penis.
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crime has in fact been committed.” Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim.
App. 2000). This other evidence need not be sufficient by itself to prove the
offense; “all that is required is that there be some evidence which renders the
commission of the offense more probable than it would be without the evidence.”
Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (quoting
Chambers v. State, 866 S.W.2d 9, 15–16 (Tex. Crim. App. 1993), cert. denied,
511 U.S. 1100 (1994)). The State may prove the corpus delicti by circumstantial
evidence. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert.
denied, 522 U.S. 844 (1997). Thus, where there is an extrajudicial statement, as
exists in this case, the corpus delicti rule requires us to consider all the record
evidence, other than the extrajudicial statement, in the light most favorable to the
verdict and to determine whether that evidence tends to establish that someone
committed an aggravated sexual assault against the victim. Fisher v. State, 851
S.W.2d 298, 303 (Tex. Crim. App. 1993).
The evidence presented included the carpet sample from Madison’s
nursery with Appellant’s semen on it and testimony from a digital forensics
examiner who stated that Appellant’s computer and phone had been cleaned and
reformatted so that evidence could not be recovered from them. In his
confession, Appellant stated that Counts One and Two occurred on the couch
and Count Four occurred on the bed, not in the nursery where the assault in
Count Three occurred. He did not state that he ejaculated during Counts One,
Two, or Four. Detective Callahan testified that there was no physical evidence
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regarding Count Four. The digital forensics expert testified that any photos or
other digital evidence had been destroyed. The only corroborating evidence that
exists corroborates only Count Three. The State was required to present
evidence corroborating each count, and it did not do so. See Daniels v. State,
No. 02-06-00258-CR, 2007 WL 2460263, at *4 (Tex. App.—Fort Worth Aug. 31,
2007, no pet.) (mem op., not designated for publication) (“[W]e simply cannot
agree with the State’s argument that Washington’s testimony, which
appropriately corroborated Daniels’s confession as to Count 1, also corroborated
his statements regarding the alleged incidents charged in Counts 2 and 3.”). The
evidence, viewed in the light most favorable to the verdict, did not establish the
corpus delicti for Counts One, Two, and Four. 4 We sustain Appellant’s second
issue.
III. Sufficiency of the Evidence of Count Three
In Appellant’s third issue, he argues that the evidence is insufficient to
support his conviction for Count Three of the indictment. In our due-process
review of the sufficiency of the evidence to support a conviction, we view all of
the evidence in the light most favorable to the verdict to determine whether any
4
The State urges that the corpus delicti rule should be abolished and
replaced with a “trustworthiness standard.” The State also acknowledges that as
an intermediate court, we are duty bound by the precedent of the Texas Court of
Criminal Appeals. Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth
2003, pet. ref’d). We therefore decline to apply our own standard to the present
case. See Abdnor v. Ovard, 653 S.W.2d 793, 794 (Tex. Crim. App. 1983)
(holding that the court of appeals erred by imposing its own standard inconsistent
with the court of criminal appeals’s previous opinion).
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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 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
The third count alleged that Appellant intentionally or knowingly caused
Madison’s anus to contact his penis. In his confession, Appellant stated that
while he was changing Madison’s diaper on the changing table, he put his penis
“between her cheeks, underneath her, and she started laughing.” He explained,
“I was trying not to push into her. . . . I didn’t thrust, you know what I’m saying?
There was no thrusting, there was just a general back and forwards.” He stated
that he put her in her swing and she was “crying up a storm.” When asked if his
penis contacted Madison’s anus, he said, “Honestly, I can’t be sure.” He said
further, “Had I touched her anus with my penis? I could have. You’re in that
situation. I mean, I could have. I’m not saying yeah I know I did or yeah I didn’t.”
Appellant argues that the uncertainty of his recollection makes it
impossible for a rational jury to find beyond a reasonable doubt that his penis
contacted Madison’s anus. He states on appeal, “The State’s argument appears
to be that in the event of uncertainty, the tie[-]breaker defaults to the State.” It is,
however, the jury’s responsibility, not ours or the State’s, “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” See Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007) (quoting Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789). The
trier of fact is the sole judge of the weight and credibility of the evidence. See
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Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise v. State, 364 S.W.3d
900, 903 (Tex. Crim. App. 2012). We may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Appellant’s confession contained graphic descriptions of the sexual
assault, which allowed the jury to visualize the event and draw reasonable
inferences. Appellant stated that he moved his daughter’s “bottom apart” and
touched “between her cheeks” with his penis. Appellant described moving his
penis back and forth in that position while taking care not to penetrate her anus
to avoid injury. After considering all the evidence, the jury could have reasonably
inferred that Appellant’s penis contacted his daughter’s anus, thereby creating
his need to prevent penetration. After considering the facts, the jury deduced a
logical consequence from them, and we believe this inference is reasonable.
See Trevino v. State, Nos. 02-10-00472-CR, 02-10-00473-CR, 02-10-00474-CR,
2012 WL 2428522, at *5 (Tex. App.—Fort Worth June 28, 2012, pet. ref’d) (mem
op., not designated for publication). Based upon the cumulative force of the
evidence when viewed in the light most favorable to the verdict, we cannot say
that the jury’s determination was unreasonable. See Crosby v. State, No. 01-01-
00850-CR, 2002 WL 31236302, at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 3,
2002, pet. ref’d) (not designated for publication) (holding that complainant’s
testimony that appellant “spread her legs, and touched her bottom with his
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‘private,’ and that this hurt her” was sufficient to show that appellant had contact
with complainant’s anus). We overrule Appellant’s third issue.
Conclusion
Having overruled Appellant’s first and third issues, we affirm the trial
court’s judgment as to Count Three for aggravated sexual assault. Having
sustained Appellant’s second issue, we reverse Appellant’s convictions as to
Counts One, Two, and Four and render a judgment of acquittal as to those
counts. See Tex. R. App. P. 43.2(c), 51.2(d); Daniels, 2007 WL 2460263, at *7.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J., MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 12, 2013
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