Derek Smith v. State ( 2012 )

Opinion issued March 29, 2012.

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-10-00903-CR

          01-10-00904-CR

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Derek Smith, Appellant

V.

The State of Texas, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Case Nos. 1214637, 1214638

MEMORANDUM OPINION ON REHEARING

          Appellant Derek Smith filed a motion for rehearing in this case.  We grant Smith’s motion for rehearing, withdraw our opinion and judgment of January 5, 2012, and substitute the following in their place.

          Smith appeals his conviction for two charges of indecency with a child.  See Tex. Penal Code Ann. § 21.11 (West 2011).  Smith pleaded not guilty to the jury, which convicted him of both charges. The trial court assessed punishment at two years’ confinement for each charge, with the sentences to run concurrently. On appeal, Smith contends that the trial court erred by permitting the testimony of the forensic interviewer because her statements were inadmissible hearsay and that the evidence is insufficient to support his conviction.  We affirm.

Background

          Smith married Wendy M., the mother of M.M., the ten-year-old complainant, in December 2008.  On March 4, 2009, Wendy reported that M.M. had been assaulted.  M.M. was taken to the Children’s Assessment Center where Lisa Holcomb conducted a forensic interview.  Tonnis Hilliard, a Department of Family and Protective Services caseworker, was assigned to M.M.’s case and was also present during Holcomb’s interview of M.M.  M.M. was removed from Wendy’s home and his father Chris M. was given primary custody with Wendy having rights to supervised visitation.

          At trial, M.M. testified that on Valentine’s Day 2009, Wendy had gone to the grocery store.  While Wendy was away, Smith touched M.M.’s anus with his fingers. M.M. also testified that, a few days before the forensic interview, Smith touched M.M’s penis.  M.M. testified that, beginning in December, Smith touched M.M.’s penis or anus every few days.  Smith threatened to destroy M.M’s video game system if he told anyone what Smith had done.

Rule of Optional Completeness

          In his first point of error, Smith contends that the trial court erred by permitting Holcomb, the forensic interviewer, to testify about what M.M. told her in an interview because her testimony was inadmissible hearsay.   

          We review a trial court’s evidentiary ruling for an abuse of discretion. Tovar v. State, 221 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)).  Hearsay statements are generally not admissible, but Texas Rule of Evidence 107, the rule of optional completeness, is an exception to the hearsay rule.  Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011).  The rule of optional completeness states,

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, wrting or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between same parties may be given.

Tex. R. Evid. 107. The rule’s purpose is to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing.  Pena, 353 S.W.3d at 814; Tovar, 221 S.W.3d at 190.  

If defense counsel pursues a subject that would ordinarily be outside the realm of proper comment by the prosecutor, the defendant opens the door and creates a right of reply for the State.  Tovar, 221 S.W.3d at 190.  Thus, under the rule of optional completeness, the State is entitled to admission of the portions of a complainant’s statement when (1) defense counsel asks questions concerning some of the complainant’s statements, (2) defense counsel’s questions leave the possibility of the jury receiving a false impression from hearing only a part of the conversation, with statements taken out of context, and (3) the portions of the statement the State seeks to introduce are necessary for the conversation to be fully understood.  Id. at 190­–91.

          On the day before Holcomb testified, Smith’s counsel cross-examined Hilliard at length about the contents of the interview with M.M., in an attempt to discredit M.M.’s testimony.  For example, Smith’s counsel got Hilliard to concede that M.M. reported that Smith sometimes tickled M.M. while M.M. was fully clothed and that M.M. characterized even that as inappropriate behavior.  Smith’s counsel also got Hilliard to concede that M.M. stated that Smith never put Smith’s mouth on M.M.’s body parts and that Smith never forced M.M. to put M.M.’s mouth on Smith’s body parts. 

The next day, the State called Holcomb, who conducted the interview in Hilliard’s presence, to testify. Smith objected that Holcomb’s testimony about M.M.’s statements in the interview was hearsay and that she was not the proper outcry witness.  See Tex. Code Crim. Proc. Ann. art. 38.072, § 2 (West Supp. 2011).  The trial court sustained this objection.  The State re-urged its proffer, arguing that Holcomb should be allowed to testify about M.M.’s statements during the interview under the rule of optional completeness, because Smith had created a potentially misleading impression of the contents of M.M.’s interview during Hilliard’s cross-examination.  The trial court made clear that it was admitting Holcomb’s testimony under the rule of optional completeness, not article 38.072.  It noted that Smith’s counsel had elicited through Hilliard only the statements of M.M. that were helpful to Smith, and that the State was entitled under the rule of optional completeness “to make sure the jury is not left with an incomplete understanding” of the substance of the statements M.M. made during the interview. 

The State asked Holcomb, “In this case, did [M.M.] disclose to you that he had been sexually abused?”  Holcomb answered, “Yes.”  The State then asked Holcomb whom M.M. identified as the person abusing him. Holcomb replied that M.M. identified Smith.  Holcomb also testified that she learned the first incident took place in December 2008 and that the incidents of abuse occurred at both the old and new houses in which M.M., his mother, and Smith lived.

We agree with the trial court that Smith’s counsel’s questioning of Hilliard about only the portions of the interview that were favorable to Smith created the false impression that M.M. did not make an allegation of sexual abuse during the interview.  See Tovar, 221 S.W.3d at 190.  The State’s questioning of Holcomb about other statements M.M. made during the same interview was necessary to correct that false impression and for the contents of the interview to be fully understood. Id.  And this was not a case in which admitting the testimony would likely create confusion, such as when the evidence to be admitted contains references to extraneous offenses.  Id. at 191. We therefore hold that the trial court did not abuse its discretion in admitting Holcomb’s testimony under the rule of optional completeness.  See id. (holding trial court did not abuse its discretion in admitting complainant’s videotaped statement under rule of optional completeness, where appellant’s counsel limited inquiry into part of complainant’s statement and left false impression with jury regarding statement’s entire contents).

          We overrule Smith’s first point of error.

Sufficiency of the Evidence

          In his second and third points of error, Smith contends that the evidence is insufficient to support his convictions.

A.      Standard of Review

          Evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt.  Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  Evidence is insufficient under this standard in four circumstances:  (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged.  Gonzalez, 337 S.W.3d at 479; see Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.   If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal.  Gonzalez, 337 S.W.3d at 479 (citing Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982)).

          An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence viewed in the light most favorable to the verdict.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).  When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.  An appellate court likewise defers to the factfinder’s evaluation of the credibility of the evidence and the weight to give the evidence.  Gonzalez, 337 S.W.3d at 479 (citing Williams, 235 S.W.3d at 750). 

B.      Analysis

          M.M. testified that Smith touched his anus and his penis.  This testimony is sufficient evidence to sustain Smith’s conviction.  Bryant v. State, 340 S.W.3d 1, 14 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (holding child complainant’s testimony alone is sufficient to support conviction) (citing Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)).

          Smith’s specific complaint is that he presented evidence showing inconsistencies and contradictions in M.M.’s testimony.  Smith asserts, “On every matter that could be objectively and independently verified, the State’s case failed.”  For example, Smith testified that no more than four people could fit in his car and, therefore, M.M. was mistaken or lying when he claimed that five people rode to Louisiana in his car.  Concerning the touching that occurred on Valentine’s Day, Smith contends that one of his friends testified that Wendy never went grocery shopping.  Therefore, according to Smith, M.M. must have been lying when he testified that Smith touched his anus while Wendy was at the grocery store. Concerning the touching that occurred shortly before the forensic interview, Smith points out that M.M. testified that it occurred in their new residence, which M.M. testified never lacked power. Smith testified they spent only one night there before M.M.’s outcry and that they had no power on that night.  Smith introduced an electric bill to corroborate his testimony on this point.

          The factfinder determines the credibility of witnesses and the weight to give their testimony.  See Williams, 235 S.W.3d at 750.  Likewise, it is up to the factfinder to resolve conflicts in testimony. See Clayton, 235 S.W.3d at 778.  As an appellate court, we must defer to the factfinder’s determinations on these matters. See id.; Williams, 235 S.W.3d at 750.  We conclude that the jury could have rationally resolved the conflicts in the testimony against Smith and could have chosen to believe M.M. rather than Smith.  We therefore hold that the evidence is sufficient to support Smith’s conviction.

          We overrule Smith’s second and third points of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish.  Tex. R. App. P. 47.2(b).