No. 05-05-01119-CR
Opinion Filed May 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-57416-W. Affirmed as Modified.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice LANG.
Donald Mathis appeals his conviction by a jury for aggravated sexual assault of a child under the age of fourteen. The jury assessed his punishment at imprisonment for ten years and one day. In four issues on appeal, appellant contends: (1) the trial court's judgment should be modified or reformed to reflect the correct date of the offense; (2) the trial court abused its discretion by denying his motion for new trial due to jury misconduct; (3) the evidence is legally insufficient to prove that he committed the charged offense; and (4) the evidence is factually insufficient to prove that he committed the charged offense. We conclude that the evidence is legally and factually sufficient to support appellant's conviction. Further, we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial due to jury misconduct. Finally, the State agrees that the judgment should be modified to correct the offense date. Accordingly, it will be modified. The trial court's judgment is affirmed as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the time of the events at issue, appellant resided with Pamela Edwards, his common-law wife. Although they had no children together, appellant and Edwards lived with Edwards's teenage daughter, Deondria Edwards, and Edwards's granddaughter, J.P.J.P. was the child of Edwards's daughter Tyra Price, who gave birth to J.P. at age 14. Edwards raised J.P. from birth. J.P. testified that in July of 2003, when she was nine years old, appellant began forcing her to have sexual intercourse with him on a regular basis. On the night that the assaults began, appellant and Edwards had been arguing. J.P. was lying in bed in her darkened bedroom, watching television. She was almost asleep when appellant walked into her room, sat on her bed, and started talking. She stated that appellant suddenly got on top of her and pinned her hands behind her back. Although she tried to escape, she was trapped by his strength and body weight. When she made a groaning sound, appellant covered her mouth tightly with his hand. J.P. said she was told repeatedly by appellant that "nobody was gonna believe me." She stated that appellant pulled her underwear down to her knees with his free hand, pulled his pants down part way, then "stuck his private part" inside her "private part" and moved it around. She testified that this hurt. Appellant then got up to see if anyone was coming, but J.P. did not scream or yell because she was scared and thought no one would believe her. Finally, appellant put his clothes on and left. According to J.P.'s testimony, appellant assaulted her in a similar manner about once or twice a week over the next year. Although most of the assaults took place in her bedroom, "one or two" occurred in the living room. Further, appellant tried "once or twice" to put his "private part" up to her mouth, but she managed to get away from him. On one or two occasions, before appellant left her room, J.P. saw something "clear" on his penis. She was always sore after appellant assaulted her, but she never told anyone about her physical pain because she did not want to invite questions. She stated that appellant never physically threatened her. On July 4, 2004, J.P. and her family attended a barbecue at the home of J.P.'s great grandmother. J.P. testified that as she was retrieving barbecue supplies from the laundry room, appellant came into the laundry room, closed the door, and pulled his penis out of his pants. She walked around him and out of the laundry room. No assaults by appellant took place after that date. J.P. testified that she did not tell Edwards about the assaults because she did not think Edwards would believe her and she was afraid that her relationship with Edwards would change. The first person J.P. told about the assaults was Shavauntis Williams, her 16-year-old cousin on her father's side. In August 2004, J.P. and Williams were discussing a recent television talk show program that had featured the topic of sexually transmitted diseases. Williams told J.P. that she had experienced a situation similar to one discussed on the program, and J.P. felt that Williams was an understanding person in whom she could confide. Although J.P. asked Williams not to tell anyone about the assaults by appellant, Williams told her mother, who was J.P.'s aunt. The news reached J.P.'s mother, Tyra Price, with whom J.P. was staying at that time. J.P. stated that she initially denied the assaults because she was afraid and didn't want anyone else to know, but she eventually told her mother the truth. Price called appellant and Edwards and made the accusation that J.P. had been sexually abused. Appellant testified that he initially understood Price to mean that J.P. had been abused by someone other than him. He said that he told Price to call the police and take J.P. to the hospital to have her examined. Appellant stated that when it became evident that he was the accused, Edwards became frightened and told him to leave the house so that he would not be arrested. Appellant left the house and returned the next day. J.P.'s father and Price took J.P. to the emergency room at Mesquite Community Hospital. They were told, however, that the services J.P. needed could not be provided there. They were referred to another doctor, but could not afford a pelvic examination for J.P. As of the date of the trial, no medical tests had been performed on J.P. Tracy Harmon, a forensic interviewer with the Dallas Children's Advocacy Center, testified at trial that she interviewed J.P. She stated that J.P. appeared calm and very soft-spoken when answering her questions and making an outcry of abuse to her. She also noted that in her experience, the emotional state of abused children varies greatly during outcry interviews, from "hysterical and sobbing" to no emotion at all. Harmon testified that she did not have any concerns during the interview that J.P. was not being consistent or truthful. Cindy Alexander, the clinical director at the Dallas Children's Advocacy Center, testified that children who have been subjected to abuse do not always exhibit changes in their everyday behavior and demeanor. She stated that children sometimes internalize their feelings, and even those who are close to them might not notice any changes. Dr. Emma Raizman of the REACH Center at Children's Hospital testified that, due to the self-restorative nature of the tissues of the vagina and hymen, "many times" medical examinations performed on children who have been raped produce a normal examination. Dr. Raizman further stated that DNA evidence of a suspected perpetrator is unlikely to exist in children later than 24 hours after an assault. Thus, Dr. Raizman testified, if a child sexual assault victim was assaulted more than 72 hours prior to visiting a hospital, the hospital would not conduct a rape kit examination. Appellant testified that at no time did he penetrate J.P.'s sexual organ with his sexual organ as alleged in the indictment. Edwards supported appellant and testified that she did not believe J.P.'s allegations. Edwards and appellant testified that the assaults could not have occurred at night as J.P. testified because appellant worked "deep nights" at a hospital until late July 2003. After losing his hospital job, appellant was unemployed for about six months, and then worked "deep nights" at a grocery store. Further, Edwards and appellant testified that they always slept together in Edwards's room, and that Edwards is a light sleeper who awakens at the slightest noise. Edwards stated that the doors to her room and J.P.'s room were always open and that she could see into J.P.'s bedroom from her own room. She also stated that J.P. did not act like someone who had been sexually assaulted. Edwards maintained that if the assaults had occurred, J.P. would have told her or her mother (J.P.'s great-grandmother) about them. The jury found appellant guilty of the offense as charged in the indictment and assessed punishment at imprisonment for ten years and one day. The trial judge sentenced appellant accordingly. The court then released the jurors from their duties and advised that they could speak to the parties about the case if they wished to do so. A number of the jurors remained in the jury room for a short period to discuss the case. One juror, Valerie King, stated that she had researched several issues on the Internet and had with her the information, which she had downloaded and printed for further reference. King offered appellant's attorney a copy of the information. The attorney accepted the offered information and noted that the printed material dealt specifically with several issues involved in the case. Appellant then filed a motion for new trial, alleging that the jury had considered outside information that influenced their decision to find him guilty. The trial court held a hearing on appellant's motion and received testimony from eight jurors, as well as arguments from counsel. The motion for new trial was denied. II. LEGAL AND FACTUAL SUFFICIENCY
We first address appellant's third and fourth issues as to legal and factual sufficiency. Appellant argues that the evidence is legally and factually insufficient to prove that he penetrated J.P.'s sexual organ with his sexual organ because the testimony of J.P. was inconsistent and unreliable. He further asserts that there was no medical, physical or scientific evidence to substantiate the State's claim. The State responds that J.P.'s testimony alone is legally and factually sufficient to support appellant's conviction. A. Standard of Review
In reviewing a legal sufficiency challenge, we view 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. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Finally, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). In reviewing the factual sufficiency of evidence to support a verdict, we review all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt, and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. This analysis is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). In conducting this review, we must not "substantially intrude upon" the fact finder's role as the exclusive judge of the evidence's weight and the testimony's credibility. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Accordingly, we must defer to the jury's decisions on credibility and weight. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). See also Johnson, 23 S.W.3d at 9. B. Applicable Law To obtain a conviction for aggravated sexual assault of a child under fourteen, the State is required to prove beyond a reasonable doubt that a person intentionally and knowingly caused the contact or penetration of the sexual organ of a child younger than fourteen years and not his spouse, by his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2005). A conviction for sexual assault may be affirmed absent any medical evidence and solely on the testimony of the victim. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). See also Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex.Crim.App. 1991); Garza v. State, 18 S.W.3d 813, 820 (Tex.App.-Fort Worth 2000, pet. ref'd). C. Application of Law to Facts
Appellant argues the issues of legal and factual sufficiency together because he asserts that they revolve around a common nucleus of law and fact. He contends that the evidence presented by the State was too weak to support a conviction and raises nothing more than a "suspicion of guilt." He asserts that no rational trier of fact could have found the evidence sufficient to support a conviction of penetration. Appellant further argues that the evidence contrary to the verdict was strong enough that the beyond-a reasonable-doubt standard could not have been met. Therefore, he maintains, the verdict was manifestly unjust. Appellant contends that the State's case is weak because his conviction "rests on the mind of an 11 year old." He argues that J.P.'s testimony was "inconsistent and unreliable." Appellant does not provide any citations to the record regarding alleged inconsistencies in J.P.'s testimony. However, he asserts, without citing specific evidence in the record, that J.P. was "constantly rejected by her birth mother and most likely alleged the assault to get her attention." He also submits that Edwards testified that J.P. would have told her or J.P.'s great grandmother about the assault. Appellant further argues that the assaults could not have happened as J.P. alleged because Edwards was a light sleeper who would awaken at even the faintest sound and frequently got up during the night to make security checks around the house. He contends that he could not have assaulted J.P. at night because he worked a night shift. He also argues that he and Edwards always slept together through the night in Edwards's bedroom. In addition, appellant asserts that the bedroom doors were always open and Edwards could see from her room into J.P.'s bedroom. Appellant contends there is no evidence that there was friction in the house between him and J.P., or that J.P. openly feared him. He submits that J.P. could have been basing her story on something she saw on television. Additionally, he suggests that she might have been trying to comfort her cousin, who had related a negative sexual experience after watching a talk show. Finally, appellant argues that no medical or physical evidence was presented at trial to substantiate penetration. He asserts, without citing any support, that "if a grown man's penis had penetrated this child's vagina, the hymen would most likely have been bruised or injured in some way." Without medical or scientific evidence, appellant contends, the jury was forced to rely on the testimony of J.P., who is "a young and unreliable impressionable witness." The record shows that rather than trying to get Price's attention, J.P. asked her cousin not to tell anyone what she had confided, and she initially denied to her mother that she had been assaulted. J.P. further testified that the reason she did not tell anyone about the assaults was because she had been warned by appellant that no one would believe her. Indeed, that fear was later realized when her grandmother, aunt, and other relatives accused her of not telling the truth. J.P. also testified that although she had heard Edwards claim to be a light sleeper, she had never seen Edwards get up in the middle of the night. Further, appellant testified that he was laid off from his night-shift job in late July of 2003 and was unemployed for about six months. The assaults began in July 2003, around the time he was laid off. J.P. and Price both testified that appellant sometimes slept in the living room. J.P. also testified that she always closed her bedroom door at night. J.P. related graphic details about the assaults and was consistent in her answers to the forensic interviewer. The State presented expert testimony establishing that outward behavioral signs are not always present in children who have been sexually assaulted. Moreover, although appellant denied assaulting J.P., he testified that after learning J.P. had made allegations against him and the police were being contacted, he left the house so that he would not be arrested. He initially testified that he just went to the store with a friend and was going to come back, but later testified that he did not return until the next day. He did not turn himself in. A conviction for sexual assault may be affirmed absent any medical evidence and solely on the testimony of the victim. Rodriguez, 819 S.W.2d at 873-74; Garza, 18 S.W.3d at 820. Accordingly, the lack of medical or scientific evidence in this case does not render the evidence legally or factually insufficient. Appellant's other arguments challenge the jury's evaluation of the witnesses' credibility. However, the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984); Bottenfield v. State, 77 S.W.3d 349, 355 (Tex.App.-Fort Worth 2002, pet. ref'd). The jury is free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side. Bottenfield, 77 S.W.3d at 355. We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Accordingly, the jury in this case was entitled to believe the testimony of J.P. and resolve any inconsistencies in her favor. Viewing the evidence in the light most favorable to the verdict, we conclude that there was legally sufficient evidence that appellant committed aggravated sexual assault of a child under the age of fourteen. In light of the detail and consistency of J.P.'s testimony, a rational trier of fact would not be precluded from finding that appellant committed the essential elements of the charged offense beyond a reasonable doubt. Further, viewing the evidence in a neutral light, the evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust, nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. We therefore conclude that the evidence is factually sufficient to support appellant's conviction. We decide against appellant on his third and fourth issues as to legal and factual sufficiency. III. DENIAL OF MOTION FOR NEW TRIAL
In his second issue, appellant argues that the trial court erred in denying his motion for a new trial because juror Valerie King brought with her into the jury room materials that constituted an improper "outside influence" under Texas Rule of Evidence 606(b). See Tex. R. Evid. 606(b). Specifically, appellant contends that jury misconduct occurred because King obtained printed research material from the Internet and attempted to use that material to influence the other jurors during deliberations. When this failed, appellant contends, "[King] most likely expressed the opinion in the article." The State responds that there is no evidence that the material at issue was read or considered by any jurors other than King. Further, the State argues, information that is gathered by a juror and shared with other jurors is not an outside influence under rule 606(b). A. Standard of Review
An appellate court reviews a trial court's denial of a motion for new trial under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). We do not substitute our judgment for that of the trial court, but decide whether the trial court's decision was arbitrary or unreasonable. Id. We view the evidence in the light most favorable to the trial court's ruling. Id. "Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling." Id. As the sole judge of the credibility of testifying jurors, the trial court does not abuse its discretion in overruling a motion for new trial when conflicting evidence exists as to jury misconduct. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). B. Applicable Law
The Texas Rules of Appellate Procedure provide that a defendant must be granted a new trial "when after retiring to deliberate, the jury has received other evidence." Tex.R.App.P. 21.3(f). To show jury misconduct under this rule, the defendant must satisfy a two-prong test: (1) the evidence must have been received by the jury, and (2) the evidence must be detrimental or adverse to the defendant. Bustamante v. State, 106 S.W.3d 738, 743 (Tex.Crim.App. 2003); Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App. 1981). The determination of whether a juror has "received" other evidence is a question of degree. Garza v. State, 82 S.W.3d 791, 794 (Tex.App.-Corpus Christi 2002, no pet.). A passing remark does not constitute receipt of other evidence. Id. In order to determine whether evidence was "received," the court must look to the context in which it was mentioned and the extent to which the jurors discussed it. Gaona v. State, 733 S.W.2d 611, 619 (Tex.App.-Corpus Christi 1987, pet. ref'd) (casual passing remark mentioned only once was not "received" by jury). Although Texas Rule of Evidence 606(b) prohibits jurors from testifying about their deliberations, a juror may testify as to whether any outside influence was improperly brought to bear upon any juror. See Tex. R. Evid. 606(b). Rule 606(b) does not define "outside influence." However, case law has established that an outside influence must come from outside the jury and its deliberations. Garza, 82 S.W.3d at 794; In re S.P., 9 S.W.3d 304, 308 (Tex.App.-San Antonio 1999, no pet.). Information gathered by a juror and shared with the other jurors does not constitute outside influence, even if shared specifically to influence the other jurors' votes. Garza, 82 S.W.3d at 794; Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref'd). C. Application of Law to Facts
During the hearing on appellant's motion for new trial, juror King testified that she researched the Advocacy Center and the REACH Clinic on the Internet the first day evidence was presented at trial. King stated, however, that she did not research this particular case. King, a school nurse, stated that she was familiar with the two agencies through her job and wanted to resolve a question she had as to the agencies' protocol in conducting rape examinations in sexual abuse cases. King testified that her understanding was that every child who made an outcry of sexual abuse was given a medical examination. She stated that the purpose of her research was not to help her make a decision in the case. Rather, she wanted to clear up confusion she had about her own practices and protocol as a school nurse regarding sexual abuse allegations by children. She further testified that she told the other jurors that she had high regard for the Advocacy Center and REACH Clinic based on her own experiences with them. King testified that she printed and highlighted some of the Internet information she found pertaining to medical detection and the effects of sexual abuse on children. She put the information into a bag that she carried with her to trial and into the jury room. However, King denied showing the printed material to any other jurors or using it to influence them. She stated that she showed it only to defense counsel, and that other jurors were present at that time. King noted that she was "probably the wrong person to be picked for this case to begin with." However, she testified that the information she researched on the Internet made no difference in her decision with respect to the guilt or innocence of appellant, nor did it make a difference in the way she thought about the case. None of the other jurors who testified at the hearing on the motion for new trial testified that they looked at the printed material King had in her bag. Juror Deborah Jones stated that she did not remember seeing any outside printed information. Juror Sandra Eberle testified that no juror mentioned any material during deliberations other than evidence presented at trial. Juror Nicholas Fennell recalled that King pulled some printed information from her bag and wanted the other jurors to look at it. Fennell testified, however, that no one looked at it, and several jurors told her to put it away immediately. Fennell could not recall whether this incident happened during deliberations on guilt-innocence or punishment. Juror Betty Ruth Shaw likewise testified that another juror had mentioned some information that she had printed out, but Shaw told the juror they could not consider it and recalled that the juror immediately put it away. Jurors Mike Lagrone, Cherie Morrow, and Gail Brady testified that they remembered King having some Internet information, but that after King was told the jury could not look at it, she put it away and it was never seen by the other jurors. Because the jurors who testified agreed that none of the jurors looked at or considered any printed material allegedly offered by King, appellant has failed to show that "other evidence" was "received" by the jury. See Garza, 82 S.W.3d at 794; Dixon v. State, 64 S.W.3d 469, 475 (Tex.App.-Amarillo 2001, pet. ref'd) (holding there was no proof jury received other evidence in the form of a media report where evidence did not show, in part, that jurors had discussed the report at length). See also Tex.R.App.P. 21.3(f). Appellant argues that because not all of the jurors testified at the hearing, there is no evidence to support a conclusion that no jurors were influenced by the materials. However, rule 21.3(f) requires a showing that other testimony or other evidence was actually received by the jury. Bustamante, 106 S.W.3d at 743; Garza, 630 S.W.2d at 274. Appellant has not cited any evidence from the record to make such a showing. Accordingly, the first prong of the two-prong test for obtaining a new trial based on the jury's receipt of other evidence has not been satisfied. Further, even had the jury received the printed material from King and considered it, this information would not constitute an outside influence under rule 606(b) because it was gathered and shared by a juror. See Garza, 82 S.W.3d at 794. Appellant acknowledges that existing case law has established that "outside influence comes from a non-juror." Appellant argues, however, that requiring an outside influence to come from a non-juror "defeats the purpose of the court's admonitions and denies defendants the right to a fair trial based on the evidence presented at trial." He further asserts that King read the printed materials and used them to "validate" her "concern with medical evidence." Appellant contends that this constituted an outside influence "improperly brought to bear upon any juror" under rule 606(b). He argues that "to allow jurors to breach any of the court's admonitions to obtain information from any source and use it should be considered an outside influence." Appellant offers no supporting authority for his arguments. This Court and others have repeatedly recognized that an outside influence "must emanate from outside the jury and its deliberations." See In re S.P., 9 S.W.3d at 309. In the recent case of Easly v. State, 163 S.W.3d 839 (Tex.App.-Dallas 2005, no pet.), Easly complained that the trial court erred in denying his motion for new trial. Easly's attorney alleged in an affidavit attached to the motion for new trial that, after an overnight recess, one juror had returned to deliberations with a chart showing calculations of how much time the defendant would actually have to serve in prison as a result of parole laws. Id. at 842. In addition, another juror offered information about parole issues that a friend who was a police officer had told him. Id. Easly's attorney alleged that the parole information influenced the jurors' decision about the defendant's punishment. Id. The Court found, however, that this type of information does not meet the outside influence exception to rule 606(b). Id. See also Hines, 3 S.W.3d at 623 (holding that juror's statements about the effect of parole on defendant's sentence clearly emanated from inside the jury); Garza, 82 S.W.3d at 794 (holding that because juror's comment on defendant's use of his left hand did not come from a non-juror, the comment was not an outside influence). Because King was a member of the jury, the printed material she offered to the other jurors did not come from a non-juror and therefore did not constitute an outside influence under rule 606(b). See Hines, 3 S.W.3d at 622. Accordingly, appellant has not shown evidence of any outside influence that was improperly brought to bear on any juror. Finally, appellant argues that even if King did not present the material to other jurors, she was biased and "quite vocal," and most likely expressed the opinion in the material to other jurors. However, King testified that, although she was "probably the wrong person to be picked for this case to begin with," she felt she had been fair. She also stated that her research did not make a difference in the way she thought about the case or in her decision with respect to appellant's guilt or innocence. Further, the record does not reflect that King relied on information from the Internet material to persuade other jurors. Accordingly, the trial court correctly overruled appellant's motion for a new trial. We decide against appellant on his second issue. IV. INACCURACY IN THE JUDGMENT
In the first issue presented, appellant argues that the trial court's judgment erroneously indicates that the offense date was "07/04/04," and that this should be modified to read accurately, "07/01/03." The State agrees with appellant. An appellate court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). On April 15, 2005, the State made a Motion to Amend Indictment, requesting that the trial court strike the words "4th day of July A.D., 2004" and replace them with the words "1st day of July A.D., 2003." The trial court granted the motion, made the correction on the indictment, and initialed it. Because the offense date contained in the judgment is incorrect, the "DATE OFFENSE COMMITTED" portion of the judgment is modified to read "07/01/03." The first issue is decided in appellant's favor. V. CONCLUSION
Based on the record before us, the evidence is legally and factually sufficient to support appellant's conviction. In addition, we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial. Finally, the judgment is modified to correct the offense date. The "DATE OFFENSE COMMITTED" portion of the judgment is modified to read "07/01/03." We affirm the trial court's judgment as modified.