COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00029-CR
JONATHAN PAUL SIKES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1 ON APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
----------
After considering Appellant’s petition for discretionary review, filed August
8, 2011, we withdraw our opinion and judgment of April 7, 2011, and substitute
the following.
A jury convicted Appellant Jonathan Paul Sikes of four counts of
aggravated sexual assault of a child under fourteen years of age and two counts
1
See Tex. R. App. P. 47.4.
of indecency with a child by contact. The jury assessed punishment at twelve
years’ confinement for each aggravated sexual assault of a child conviction and
five years’ confinement for each indecency with a child by contact conviction.
The trial court sentenced Appellant accordingly and ordered him to serve the
sentences consecutively. Appellant brings twenty-seven issues on appeal,
challenging the sufficiency of the evidence to support his convictions; arguing
that the jury was allowed to convict on each count with less than a unanimous
verdict; contending that his convictions for aggravated sexual assault of a child in
count one and indecency with a child in count six violated double jeopardy
protections of the Texas Constitution (but making no argument based on the
federal constitution); and complaining that the trial court abused its discretion by
admitting his letter to his father. Because the evidence is sufficient to support all
the convictions, because no double jeopardy violation is apparent on the face of
the record, because the jury charge did not improperly allow a non-unanimous
verdict, and because the trial court did not abuse its discretion by admitting the
letter, we affirm the trial court’s judgment.
Statement of Facts
The complainant, K.S., described sexual abuse that began when
Appellant, her half-brother, was sixteen years old. Because Appellant was a
juvenile until his seventeenth birthday, the jury was instructed that they could
convict only of offenses that Appellant committed on or after his seventeenth
birthday. At trial, K.S. testified that one night when she was ten and Appellant
2
was sixteen, she got up in the middle of the night to get some water from the
kitchen, passing the living room on the way, and then returned to her room.
Appellant came into her room and told her to come into the living room with him.
When K.S. went into the living room, she saw that Appellant was watching ―porn.‖
Appellant left the room for a while, returned, and then eventually moved to sit
next to K.S. on the couch. K.S. testified that Appellant began to ―fondle with [her]
vagina [sic],‖2 then took off her clothes, and ―start[ed] to have intercourse with
[her].‖
K.S. testified that after that occasion, she had sex with Appellant on
―[a]verage two to three times a month.‖ When asked if she remembered ―any
other specific instances of what he would do to [her],‖ she testified that in addition
to vaginal sex, they had anal sex ―multiple times‖ and that with respect to oral
sex, ―hi[s] contacting his penis to [her] mouth‖ happened ―about five times‖ and
―hi[s] using his mouth on [her] vagina [sic]‖ happened about the same number of
times.
K.S. also testified that she woke up one night with Appellant on top of her
and holding a knife to her throat, telling her that if she told anyone what was
going on, he would kill her. When K.S. was thirteen, Appellant moved out of the
house.
2
See Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.—Fort Worth 1997, no
pet.) (―[T]he vagina is an internal organ. It is a canal that leads from the uterus of
a female mammal to the external orifice of the genital canal.‖) (citations omitted).
3
In the spring of 2005, when K.S. was a freshman in high school, she told
her friend L.A. about what had happened, and L.A. told the school counselor.
CPS was contacted, and K.S. gave a statement to CPS in June 2005.
The indictment reveals that Appellant was born September 13, 1984. The
indictment charges (1) that Appellant committed sexual assault by penis-to-
female-sexual-organ contact, penis-to-anus contact, mouth-to-female-sexual-
organ contact, and penis-to-mouth contact against K.S. and (2) that he
committed indecency with a child under the age of seventeen years by touching
her breast and ―by touching any part of [her] genitals.‖ All the indicted acts were
alleged to have occurred on or about May 1, 2003.
During trial, over Appellant’s objection, the trial court admitted into
evidence a letter that he had written to his father after his arrest. In the letter,
Appellant stated, ―I know that I really hurt you in the past,‖ and ―I truely [sic] am
sorry.‖
Sufficiency of the Evidence
In his first twelve issues, Appellant challenges the legal and factual
sufficiency of the evidence to support his six convictions. After the parties briefed
this case on appeal, the Texas Court of Criminal Appeals held ―that there is no
meaningful distinction between a Clewis factual sufficiency standard and a
Jackson v. Virginia legal-sufficiency standard‖ and that
the Jackson v. Virginia standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient
to support each element of a criminal offense that the State is
4
required to prove beyond a reasonable doubt. All other cases to the
contrary, including Clewis, are overruled.3
Accordingly, we apply the Jackson standard of review to Appellant’s
sufficiency complaints. 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 prosecution to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. 4
We must remember that the Jackson standard is not a no-evidence
standard. In her concurring opinion, Judge Cochran reminds us that
Texas courts were prohibited from applying a ―no evidence‖ standard
of review to a legal-sufficiency challenge because that standard
affords ―inadequate protection against potential misapplication of the
reasonable-doubt standard‖ in criminal cases. In 1989, [the Texas
Court of Criminal Appeals] explained, ―Adherence to the no evidence
standard is now, and has been for the last decade, expressly
forbidden by Jackson. It is no longer permissible to merely quote the
Jackson standard and then to turn around and apply the Thompson
no evidence standard as we have historically done.‖5
Appellant argues that the evidence is insufficient to prove the elements of
each offense alleged in counts one through six because the testimony comprised
evidence of offenses that occurred before Appellant turned seventeen years of
age. The State was required to prove that the offenses occurred after Appellant
3
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
4
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
5
Brooks, 323 S.W.3d at 916–17 (Cochran, J., concurring) (footnotes
omitted).
5
became an adult for purposes of legal prosecution. 6 Appellant points out that
K.S. described only three specific instances of ―sexual contact,‖ once when she
was ten and Appellant was fifteen or sixteen, ―. . . one time, [K.S. and Appellant]
were in his room . . . ,‖ and ―one time [she] woke up . . . .‖ As Appellant alleges,
the first described incident occurred when he was clearly a juvenile, and no time
frame was given for the other two events. Appellant argues that consequently
there was no evidence that either of those events occurred after his seventeenth
birthday. Appellant further states that ―[w]ithout alluding to a single specific
incident, [K.S.] . . . testified that after [he] turned 17 years old, he contacted his
penis to her vagina [sic], contacted his penis to her anus, contacted his penis to
her mouth, contacted his mouth to her vagina [sic], touched her breasts and
touched her vagina [sic] . . . [;o]ther than [K.S.’s] conclusory statement that it
happened, there is absolutely no evidence in the record that any abuse occurred
after Appellant’s 17th birthday.‖
The State argues that K.S. had told her two friends of the abuse and had
confirmed it to CPS workers and to the police. K.S. told the CARE team that
Appellant had sexually abused her eight to ten times, beginning when she was
about ten years old until she was thirteen years old. In response to Appellant’s
argument that K.S.’s testimony was conclusory with no additional corroborating
details and insufficient because it failed to allude to a specific incident, the State
6
See Tex. Penal Code Ann. § 8.07(b) (West 2011).
6
points out that it is the jury who must determine the credibility of the witnesses
and the weight to be given to their testimony. 7 The law permits wide latitude in
evaluating the testimony of a child witness who is the complainant in a sexual
abuse case, as opposed to a capital murder case, a robbery case, a murder
case, or any other case. 8 The same latitude appears to be granted to an adult
testifying about events that occurred in childhood, as in this case. 9 Here, K.S.
was nineteen years old when she testified about the events for which Appellant
was convicted. If the jurors determined that the evidence was sufficient to
convince them beyond a reasonable doubt that the offenses occurred, the
evidence is sufficient under the law.10
The jury also heard testimony from two of K.S.’s friends, her school
counselor, two CPS investigators, and a doctor from the CARE team describing
K.S.’s report to them. Additionally K.S. testified that the assaults occurred two to
three times a month after Appellant turned seventeen years old until he moved
out of the home when he was nineteen years old. While this testimony may
7
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).
8
See, e.g., Klein v. State, 273 S.W.3d 297, 303 (Tex. Crim. App. 2008).
9
See, e.g., Revels v. State, 334 S.W.3d 46, 48–50, 52–53 (Tex. App.—
Dallas 2008, no pet.).
10
See generally Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997);
see also Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
7
seem inconsistent with her testimony that it happened only approximately ten
times from the time it began, the jury alone was responsible for determining the
credibility of the witnesses and resolving any conflicts in the evidence. 11
Additionally, as the State points out, the State is not required to plead and
prove any specific date in a child sexual abuse case. The ―on or about‖ language
of the indictment allows the State to prove, without apparent regard for the
evidence presented to the grand jury, any date within the statute of limitations, so
long as it is anterior to the presentment of the indictment. 12
We hold that because current law allows such latitude in proving sexual
offenses against children, as opposed to the standards applied to other offenses,
the evidence is sufficient under the Jackson standard to support the verdicts. We
overrule Appellant’s first twelve issues.
Double Jeopardy
In issues twenty-five and twenty-six, Appellant argues that his conviction
for aggravated sexual assault of a child in count one and his conviction for
indecency with a child in count six violate double jeopardy protections. The
allegation that Appellant intentionally or knowingly caused K.S.’s sexual organ to
contact his sexual organ, as provided in count one, and the allegation in count six
that Appellant did then and there intentionally with intent to arouse or gratify
11
See Tex. Code Crim. Proc. Ann. art. 38.04; Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Brown, 270 S.W.3d at 568; Clayton, 235 S.W.3d at 778.
12
Sledge, 953 S.W.2d at 256.
8
sexual desire engage in sexual contact by touching any part of her genitals may
both be proved by evidence of penis-to-female sexual organ contact.
The Texas Court of Criminal Appeals has held that, despite the fact that
indecency, unlike sexual assault, requires evidence of intent to arouse and gratify
the sexual desire of any person, ―indecency with a child is a lesser-included
offense of aggravated sexual assault of a child where both charges are based on
the same incident.‖13 In its discussion, the Evans court referred to the earlier
decision in Ochoa v. State14 and noted with approval Judge Keller’s concurring
opinion that discussed the double jeopardy implications of charging a defendant
with two different statutes for the same incident.15 But because Appellant did not
raise his double jeopardy complaint at the trial level, he was required to show
that a double jeopardy violation was apparent from the face of the record in order
to raise his complaint for the first time on appeal.16
Although the indictment is not a model pleading, there is testimony of both
contact and touching from which the jury could conclude beyond a reasonable
13
Evans v. State, 299 S.W.3d 138, 143 & n.6 (Tex. Crim. App. 2009).
14
Id. at 141–43; Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App.
1998) (concluding that indecency with a child is a lesser-included offense of
aggravated sexual assault of a child when both charges are based on the same
incident).
15
Evans, 299 S.W.3d at 141–43; Ochoa, 982 S.W.2d at 911 (Keller, J.,
concurring) (noting that charging Ochoa with two different offenses for the same
incident was a double jeopardy violation).
16
See Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008).
9
doubt that after his seventeenth birthday, Appellant touched K.S.’s genitals with
something other than his mouth or penis.
Dr. Jamye Coffman, who was part of the CARE team that examined K.S.,
testified over objection to the medical history K.S. provided. In response to the
question about K.S.’s statements about vaginal contact Coffman testified,
A. She said yes to penis contacting the vagina [sic], which she
had already said, and then yes to the finger or hand contacting
the vagina [sic], and then no to any object.
....
Q. And when somebody says they touched my vagina or placed
a penis against my vagina, does that mean her sexual organ
was contacted?
A. Yes.
Because there is evidence from which the jury could conclude that, after
his seventeenth birthday, Appellant touched K.S.’s female sexual organ with
something other than his mouth or penis (that is, his finger or hand), it is not
apparent from the face of the record that the jury necessarily convicted Appellant
of both contacting K.S.’s sexual organ with his penis or mouth and touching her
sexual organ with his penis or mouth in the same incident. Consequently, we
hold that Appellant has forfeited his double jeopardy complaint.17 We overrule
his twenty-fifth and twenty-sixth issues.
17
See Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006).
10
Unanimous Verdicts
Appellant argues in his thirteenth, fifteenth, seventeenth, nineteenth,
twenty-first, and twenty-third issues that he was denied his right to a unanimous
jury verdict under the Sixth Amendment to the Constitution of the United States.
The State argues that he has no federal right to a unanimous jury verdict. 18 The
State relies on a majority holding that the Sixth Amendment does not require
conviction by a unanimous verdict in a state court. 19 We overrule those issues.
In his fourteenth, sixteenth, eighteenth, twentieth, twenty-second, and
twenty-fourth issues, Appellant contends that the jury charge allowed him to be
convicted on nonunanimous verdicts in violation of the Texas Constitution. The
State concedes that a jury verdict in a criminal case is required to be unanimous
under the Texas Constitution. 20 Unanimity means that the jurors must agree that
the defendant committed the criminal act alleged.21 While it is required that the
jury unanimously agree that the defendant committed the specific criminal act,
the jury is not required to agree on manner and means, so long as the possible
18
Apodaca v. Oregon, 406 U.S. 404, 409–13, 92 S. Ct. 1628, 1632–34
(1972).
19
See id.
20
See Tex. Const. art. V, § 13; Pizzo v. State, 235 S.W.3d 711, 714 (Tex.
Crim. App. 2007).
21
Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005).
11
manner and means is properly pled in the charging instrument.22
Here, the trial court provided separate verdict forms for each separate
offense alleged. The jurors were instructed that their verdicts must be
unanimous as to each count. The State contends that Appellant appears to
argue that the verdicts may not have been unanimous because the jurors could
have disagreed on the specific incident the verdict form referred to. The State
was not asked to make an election, and the State was not ordered to make an
election. K.S. testified that the same events occurred more than one time within
the statute of limitations, and prior to the return of the indictment. The State
points out that regarding jury unanimity, the Dixon v. State court stated,
We likewise perceive no risk that the present case led to a non-
unanimous verdict. The only distinguishing detail among the one
hundred offenses is that one occurred during the day, while all the
others happened at night. The difference is the result of a single line
of the child’s testimony—in fact, the use of a single word, ―daytime,‖
as denoting one of those hundred incidents. But there is simply no
basis in the record for the jury to believe that one incident occurred
during the day but that none occurred at night. The nighttime
scenario being typical (ninety-nine out of one hundred), it is obvious
from this record that anyone who believed the complainant’s
allegations in any respect would believe that sexual assaults
occurred at night.23
We note that the jury was instructed that the verdicts must be unanimous,
and we presume that the jury followed the instruction. 24 We hold that there was
22
Pizzo, 235 S.W.3d at 714–15.
23
201 S.W.3d 731, 735 (Tex. Crim. App. 2006).
24
See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
12
no error in the charge relating to jury unanimity. We overrule Appellant’s
fourteenth, sixteenth, eighteenth, twentieth, twenty-second, and twenty-fourth
issues.
Admission of Appellant’s Letter
In his twenty-seventh issue, Appellant argues that the trial court abused its
discretion by admitting into evidence a letter that he wrote to his father about six
months after Appellant was incarcerated on the charges in this case. Appellant
wrote that he was ―sorry for all the harm that [he had] cause[d] everyone,‖ he
knew that he had ―really hurt [his father] in the past,‖ ―[i]t took almost 5 months to
figure out what to say,‖ and ―[Appellant] love[s] [his father] and everyone that
[Appellant has] hurt.‖ Appellant objected that the letter was hearsay because the
recipient of the letter was deceased and that it was not relevant, and he also
objected to its ―probative and prejudicial effect.‖ The trial court overruled the
objections. But Appellant neither requested nor received a running objection to
the evidence. When the State questioned Robin Sikes, Appellant’s stepmother,
about the letter and had her read the letter to the jury, Appellant made no further
objection.
To preserve error, a party must continue to object each time the
objectionable evidence is offered.25 A trial court’s erroneous admission of
25
Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing
Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v.
State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026
(1999).
13
evidence will not require reversal when other such evidence was received
without objection, either before or after the complained-of ruling.26 This rule
applies whether the other evidence was introduced by the defendant or the
State.27 Consequently, we hold that Appellant forfeited any error in the
admission of the letter and overrule his twenty-seventh issue.
Conclusion
Having overruled all of Appellant’s twenty-seven issues, we affirm the trial
court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
GABRIEL, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 6, 2011
26
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
27
Id.
14