Opinion
No. 10-17-00025-CR
12-13-2017
JUSTIN WAYNE HAISTEN, Appellant v. THE STATE OF TEXAS, Appellee
From the 18th District Court Johnson County, Texas
Trial Court No. F49955
MEMORANDUM OPINION
In three issues, appellant, Justin Wayne Haisten, challenges his convictions for two counts of aggravated sexual assault of a child under six years of age and two counts of indecency with a child by exposure. See TEX. PENAL CODE ANN. § 21.11 (West 2011); see also id. § 22.021 (West Supp. 2016). Specifically, appellant contends that the evidence is insufficient to support his convictions and that the trial court abused its discretion by allowing the introduction of extraneous-offense evidence during the guilt-innocence phase of trial under article 38.37(b) of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.37(b) (West Supp. 2016). Because we overrule all of appellant's issues, we affirm the judgment of the trial court.
In prosecutions involving Penal Code chapter 21 and 22 offenses, article 38.37(b) provides the following:
Notwithstanding Rule 404 and 405, Texas Rules of Evidence, 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:
TEX. CODE CRIM. PROC. ANN. art. 38.37(b) (West Supp. 2016).(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
I. EXTRANEOUS-OFFENSE EVIDENCE AND ARTICLE 38.37 OF THE CODE OF
CRIMINAL PROCEDURE
In his first issue, appellant argues that the trial court abused its discretion by admitting evidence during the guilt-innocence phase of trial that he had been convicted of aggravated sexual assault of a child in 2005. Appellant contends that "the State did not present any evidence to show how they intended to prove to the jury that this conviction was true. Therefore, there was no basis for the trial court to determine that a hypothetical juror could conclude that appellant committed the proposed extraneous act."
To preserve error for appellate review, a complaining party must make a timely and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must correspond or comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref'd). "Where a trial objection does not comport with the issue raised on appeal, appellant has preserved nothing for review." Wright, 154 S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that an issue was not preserved for appellant review because appellant's trial objection did not comport with the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (same).
Prior to voir dire, the trial court conducted an article 38.37 hearing to determine the admissibility of evidence pertaining to appellant's prior conviction for aggravated sexual assault of a child. At this hearing, appellant argued that the evidence should be excluded from the guilt-innocence phase of trial because the proffered evidence is too dissimilar to the offense to be relevant, and because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. However, as noted earlier, on appeal, appellant complains that the trial court abused its discretion in admitting this evidence because the State failed to show how it intended to prove up this prior conviction. Appellant's complaint on appeal does not comport with the objection and arguments made at trial. Accordingly, we cannot say that he has preserved this issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Ibarra, 11 S.W.3d at 197; Dixon, 2 S.W.3d at 273; Wright, 154 S.W.3d at 241. We overrule appellant's first issue.
II. SUFFICIENCY OF THE EVIDENCE
In his second and third issues, appellant asserts that the evidence supporting his convictions is insufficient. We disagree.
A. Standard of Review
In reviewing 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard enables the fact finder to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ("We resolve inconsistencies in the testimony in favor of the verdict."). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
B. Aggravated Sexual Assault of a Child Under Six Years of Age
Under section 22.021(a)(1)(B)(iii) of the Penal Code, the State must prove beyond a reasonable doubt that: (1) appellant intentionally or knowingly caused the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person; and (2) the victim is under fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B)(1). The minimum term of imprisonment is increased to twenty-five years if the victim of this offense was younger than six years of age at the time the offense was committed. See id. § 22.021(f).
A child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.—Amarillo 2012, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd); see also Grizzle v. State, No. 10-14-00204-CR, 2015 Tex. App. LEXIS 376, at *5 (Tex. App.—Waco Jan. 15, 2015, pet. ref'd) (mem. op., not designated for publication).
The courts will give wide latitude to testimony given by child victims of sexual abuse. The victim's description of what happened need not be precise, and the child is not expected to communicate with the same level of sophistication as an adult. Corroboration of the victim's testimony by medical or physical evidence is not required.Cantu, 366 S.W.3d at 776 (internal citations omitted).
Here, the child victim, B.H., testified that her "daddy," appellant, touched her on her private area. The record also contains testimony corroborating B.H.'s testimony. Specifically, Tonua Rubell, appellant's mother, and Child Advocacy Center forensic examiner Kacie Hand both testified that B.H. told them that appellant touched her "vajayjay" with his "vajayjay" and that this occurred in the bedroom and bathroom while her mother was at work. Additionally, Rubell, who was a nurse for thirty-two years, noted that B.H.'s vagina was red; that she thought that was suspicious; and that B.H. told her that appellant touched B.H.'s "vajayjay" with his "vajayjay" and his tongue all of the time. Moreover, Rubell recalled that B.H. got nervous when she made her outcry and that B.H. told her that appellant threatened to spank her if she said anything about the abuse.
Nurse Teresa Fugate examined B.H. within 120 hours of the last incident of sexual abuse. Nurse Fugate testified that B.H. told her that appellant touched and licked her "vajayjay;" that appellant had put his penis in B.H.'s mouth causing her cheeks and throat to hurt; and that B.H. was four years old at the time of the last incident of sexual abuse.
Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have determined beyond a reasonable doubt that appellant intentionally or knowingly caused the sexual organ of B.H., a child younger than six years of age, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (f); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. Accordingly, we hold that the evidence is sufficient to support appellant's conviction for aggravated sexual assault of a child younger than six years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (f); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. We overrule appellant's second issue.
C. Indecency with a Child by Exposure
To support a conviction for indecency with a child by exposure, the State was required to prove beyond a reasonable doubt that: (1) the child was within the protected age group; (2) the child was present; (3) the accused had the intent to arouse or gratify someone's sexual desire; (4) the adult knew that a child was present; and (5) the accused exposed his anus or genitals. See TEX. PENAL CODE ANN. § 21.11(a)(2)(A); see also Grizzle v. State, No. 10-14-00204-CR, 2015 Tex. App. LEXIS 376, at *8 (Tex. App.—Waco Jan. 15, 2015, pet. ref'd) (mem. op., not designated for publication).
Rubell testified that B.H. told her that appellant sat in a recliner and watched a "nasty" movie while B.H. was playing on the floor and her sister was in a nearby bed. According to Rubell, B.H. described the movie as "nasty" "because the guy puts his vajayjay on the girl's vajayjay like Daddy does." While watching the movie, B.H. saw appellant pull out his penis to masturbate. B.H. told Rubell that she saw appellant move his hand up and down until white stuff came out of his "vajayjay." Later, Rubell stated that appellant admitted that "he was jacking off in the recliner. He didn't know if she [B.H.] could see him. And when he was watching porn maybe she was sneaking and watching him . . . . He [appellant] said, I may be guilty of that but I'm not guilty of touching my daughter." Laurie Hahn, B.H.'s other grandmother, corroborated Rubell's testimony that appellant admitted to masturbating while watching pornography in a recliner while B.H. and her sister were sitting on the floor nearby watching Netflix. The record also reflects that both B.H. and her sister were less than seventeen years of age.
Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have determined beyond a reasonable doubt that appellant exposed his penis with the intent to arouse or gratify his sexual desire while B.H. and her sister were present and that the children were within the protected age group. See TEX. PENAL CODE ANN. § 21.11(a)(2)(A); see also Grizzle, 2015 Tex. App. LEXIS 376, at *8. In other words, we hold that the evidence is sufficient to support appellant's conviction for indecency with a child by exposure. See TEX. PENAL CODE ANN. § 21.11(a)(2)(A); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13; see also Grizzle, 2015 Tex. App. LEXIS 376, at *8. We overrule appellant's third issue.
III. CONCLUSION
Having overruled all of appellant's issues, we affirm the judgments of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed December 13, 2017
Do not publish
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