Christopher Douglas Simmons v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00132-CR
CHRISTOPHER DOUGLAS SIMMONS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1294037D, Honorable Sharen Wilson, Presiding
May 2, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Christopher Douglas Simmons, appeals the trial court’s judgment
pronouncing him guilty of four violations of civil commitment requirements for sexually
violent predators.1 As to each violation, appellant was sentenced to seven years’
imprisonment, the four sentences to run concurrently. On appeal, he challenges the
sufficiency of the evidence to support his convictions. We will affirm.
1
See TEX. HEALTH & SAFETY CODE ANN. § 841.085 (West 2010).
Factual and Procedural History
By judgment signed on August 19, 2009, by the 435th Judicial District Court of
Montgomery County, Texas, appellant was adjudicated a sexually violent predator and
was civilly committed upon his release from the Texas Department of Criminal Justice
(TDCJ) for one or more sexually-based offenses.2 See TEX. HEALTH & SAFETY CODE
ANN. § 841.003 (West Supp. 2013).
When appellant was released from TDCJ in January 2012 and pursuant to the
order of civil commitment, he was sent to live at the Avalon Fort Worth Transitional
Center, a halfway house, where he was assigned custodial duties at the facility.3 Case
manager, Clemmy Washington, of the Office of Violent Sex Offender Management
(OVSOM), set up an initial meeting with appellant in which Washington explained all the
behavior and supervision requirements and conditions by which appellant must abide
while living at the facility. See id. § 841.082(a) (West Supp. 2013) (outlining the
“requirements necessary to ensure the person’s compliance with treatment and
supervision and to protect the community,” including the person’s “compliance with all
written requirements imposed by the case manager or otherwise by the [OVSOM]”).
Appellant was given a copy of the requirements, indicated to Washington that he
understood those requirements, agreed to abide by them while he was a resident of the
2
The precise sexual offense or offenses for which appellant was convicted and imprisoned is not
clear from the record before us. We do know that the Beaumont Court of Appeals affirmed the trial
court’s final judgment and order of civil commitment signed August 19, 2009. See In re Commitment of
Simmons, No. 09-09-00478-CV, 2011 Tex. App. LEXIS 4500 (Tex. App.—Beaumont June 16, 2011, no
pet.) (mem. op.).
3
It appears that the formal name of the facility owned and operated by Avalon Correctional
Services, Inc. is the “Fort Worth Transitional Center.” However, throughout the record, the facility is
referred to more informally as “the Avalon house” or “the Avalon halfway house” by both its residents and
its staff. For convenience, we will refer to the facility likewise as “the Avalon house” throughout this
opinion.
2
Avalon house, and signed and dated a copy of them, a copy of which is included in the
record.
Of the several requirements applicable to appellant as a resident of the Avalon
house was Condition 11, prohibiting appellant from engaging in “deviant masturbation”
as that term is defined by those conditions. Appellant was also subject to Condition 29,
prohibiting him from exposing himself to someone with whom he was “not in a
committed, consenting, monogamous sexual relationship.” Appellant further agreed to
refrain from “communicat[ing] with others in a manner which could be considered
obscene, threatening[,] or harassing.”
Following a fellow resident’s report, the details of which will be provided later in
the opinion, that appellant had engaged in behavior which violated the conditions to
which he was subject, appellant was arrested and charged with violating the conditions
and requirements of his civil commitment as a sexually violent offender. See TEX.
HEALTH & SAFETY CODE ANN. § 841.085. The State proceeded on eight separate counts
within the indictment that pertained to allegations that the appellant had exposed his
genitals or had masturbated in front of a fellow resident of the Avalon house. Appellant
waived a jury trial. After hearing the evidence, the trial court found appellant guilty of
Paragraphs 1 and 3 of Count II and Paragraphs 1 and 3 of Count III and sentenced
appellant to seven years’ incarceration as to each offense, again, those sentences
running concurrently.
On appeal, appellant presents to this Court one issue, that one issue concerning
the sufficiency of the evidence to support the trial court’s conclusion that he was guilty
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of the four violations. More specifically, he challenges the sufficiency of the evidence on
the basis of the credibility of the State’s primary witness, calling it “so rife with
inconsistencies so as to be completely lacking in credibility or reliability.” The remainder
of his position is as follows:
The Trial Court’s finding of guilt was based solely on her testimony, even
though the evidence presented showed clearly that she was lying about
her whereabouts as to the first alleged incident of indecent exposure.
Logic suggests that if she lied about the first incident, (and the record
shows overwhelmingly that she did in fact lie), she cannot be afforded any
credibility as to the second allegation. The Trial Court should[,]
therefore[,] have found the Appellant not guilty as to all counts.
After reviewing the record in the requisite light, we will affirm the trial court’s judgment of
conviction.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
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question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single
evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.” Id. at 899.
Applicable Law
“A person commits an offense if, after having been adjudicated and civilly
committed as a sexually violent predator under [Chapter 841], the person violates a civil
commitment requirement imposed under Section 841.082.” TEX. HEALTH & SAFETY
CODE ANN. § 841.085. Section 841.082 requires, inter alia, “the person’s participation in
and compliance with a specific course of treatment provided by the office and
compliance with all written requirements imposed by the case manager or otherwise by
the [OVSOM].” See id. § 841.082(a)(4). Appellant does not challenge a particular
element of the offense for which he was convicted. Instead, he maintains that a State’s
witness was so unreliable and so incredible as a witness that the trial court could not
have reasonably concluded, on her testimony, that appellant engaged in the behavior
alleged.
We begin with the well-established principle that an appellate court will not
position itself as a thirteenth juror to disregard, realign, or reweigh the evidence. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (en banc). It is equally
well-established that resolution of conflicts and inconsistencies in the evidence is the
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province of the trier of fact. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim.
App. 1982) (op. on reh’g); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979).
Such conflicts will not call for reversal so long as there is enough credible testimony to
support the conviction. Bowden, 628 S.W.2d at 784. Because resolution of conflicts or
inferences therefrom lies within the exclusive province of the fact-finder, it may choose
to believe all, none, or some of the evidence presented to it. See Heiselbetz v. State,
906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (en banc); Bowden, 628 S.W.2d at 784.
“The trial judge, when sitting as the sole trier of facts, is the exclusive judge of the
credibility of the witnesses and the weight to be given to their testimony.” Joseph v.
State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995) (en banc)
Analysis
With those principles in mind, we examine the testimony and the other evidence
presented to the trial court.
Lisa Knight, a felony DWI parolee and fellow resident of the Avalon house,
testified that on July 17, 2012, at approximately ten or eleven o’clock in the morning,
she was at the women’s telephone booth in the administrative section of the house
when appellant approached her, exposed his genitals, and declared that he liked to
rape women. She had never spoken with appellant and knew him only as the person
assigned custodial duties around the facility; she had no relationship, sexual or
otherwise, with appellant and did not consent to his behavior. Knight explained that she
was “very offended” by appellant’s conduct and statement but did not report it that day.
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Approximately one month later, in the early morning hours of August 17, 2012,
Knight again saw appellant as she sat in the female smoking area outside the chow hall
and as appellant stood in or very near one of the three doorways into the chow hall,
approximately thirty to forty feet from her, she estimated.4 She testified that appellant
was masturbating as he exposed himself to her and her roommate and made eye
contact with her, behavior which Knight considered obscene and harassing. She left
the smoking area, returned to her room, and, shortly thereafter, reported the incident.
Tanya McElrath, assistant administrator with Avalon Correctional Services who
worked at the Avalon facility in Fort Worth, conceded that appellant would have been
permitted to be in more places at less restricted times than most other residents as a
consequence of his custodial and maintenance duties at the facility. Specifically, she
testified that appellant would sometimes remain in the chow hall after meal time hours
for the purpose of cleaning up. So, it appears the several gender, time, and location
restrictions in place at the Avalon house were relaxed for appellant so that he could
fulfill his assigned duties.
Eric Ramon, a client monitor supervisor at the Avalon facility since 2009, testified
that he spoke with appellant nearly every day and that appellant helped Ramon on a
regular basis with the duties associated with setting up the chow hall for meals. He
testified that, on the morning at issue, he spoke with appellant. Appellant asked him
whether he had seen Knight around; Ramon responded that he had not.
4
Though there is a significant amount of testimony detailing the location of the female smoking
area in relation to the chow hall, the layout of and the relationship between the two areas remain
somewhat unclear from the record other than it having been clarified that the designated smoking area for
females was not inside the confines of the chow hall. It appears that, when Knight was at the smoking
area, she was outside and, perhaps, one level above the chow hall doorway in which appellant exposed
himself and masturbated in front of her.
7
In his challenge to the consistency and credibility of Knight’s testimony, appellant
emphasizes that, according to the Avalon house records, Knight was not at the Avalon
house when the incident in July allegedly occurred and also points out that she waited
about thirty days to report the first encounter with appellant. Indeed, according to the
sign-in/sign-out sheets monitored and controlled by Avalon staff, Knight had checked
out of the facility at 9:07 on the morning of July 17, 2012, and did not returned until 4:05
that afternoon. At least twice during her testimony, however, Knight admitted that she
was not certain about the time; she thought it had been “around that time.” Appellant
also points out that Knight had left the facility to attend a court hearing at which she
testified against another Avalon house resident who had allegedly cursed at and
threatened her. On this basis, appellant characterizes Knight as a “somewhat litigious
individual.” With respect to the delay-in-reporting point, appellant emphasizes that,
even though Knight testified that she had been “very offended” by the July incident, she
failed to report it until approximately one month later at the same time she reported the
second encounter. Knight explained her decision to make a delayed report of the July
incident as follows: “Because after talking to some of the other women and finding out
that he had done this, which they didn’t go forward, I – I just decided on my own I didn’t
have to be subjected to that.”
Appellant also focuses on Knight’s own violation of Avalon house rules by her
impermissible possession of a cell phone, an offense discovered the very day Knight
reported appellant’s behavior to the staff. Knight freely admitted her possession of the
cell phone both to administrators at the facility the day the phone was discovered and at
trial. She explained that there was no confrontation between her and Avalon
8
management over the phone. She went to the management staff that day and admitted
to them that the phone was hers and not her roommate’s, as the staff had originally
suspected. She testified that she never expected any reward or any relief from her
punishment relating to the cell phone as a consequence of her reporting the encounters
with appellant. In fact, she testified that she was punished for having had possession of
the cell phone, having been “red tagged”—restricted from leaving the facility at all—for
“more than three” days.
Appellant also points to Ramon’s testimony that, when the male residents of the
facility are eating in the chow hall, the female residents are not permitted into the chow
hall; female residents should all be back in their rooms when the males are eating in the
chow hall. However, Ramon also testified that, when the male residents are finished
with their meals, everyone is allowed to move about freely. Ramon also recalled that he
spoke to appellant that morning and he had asked about Knight’s whereabouts and
whether Ramon had seen her. Ramon testified he told appellant he had not seen her
that morning. It is not clear at what time appellant asked Ramon about Knight, and
Ramon concedes that he may not have seen Knight if she happened to be outside the
chow hall in the designated smoking area for females.
While we do recognize that there is evidence which contradicts or undermines
Knight’s estimated time of the July incident, we note that Knight did concede that she
was not certain of the exact time of the incident. We also acknowledge that the trial
court, sitting as finder of fact, was charged with resolving conflicts or confusion in the
testimony. See Joseph, 897 S.W.2d at 376. And, as the State responds, Texas law
permits the fact-finder to believe a witness even though a portion or portions of the
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witness’s testimony has been contradicted. See Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). Further, as fact-finder, the trial court was free to choose to
believe all, none, or some of the evidence presented to it. See Heiselbetz, 906 S.W.2d
at 504.
Similarly, there are uncertainties as to some details surrounding the August
incident. However, the trial court, sitting as fact-finder, was charged with resolution of
conflicting evidence and was free to believe any, all, or none of Knight’s testimony.
Again, we will not serve as the thirteenth juror to reevaluate the evidence and make the
credibility and weight determinations which remain duties belonging solely to the fact-
finder. See Moreno, 755 S.W.2d at 867. Our review of the record in a light most
favorable to the verdict reveals sufficient evidence—albeit not evidence entirely without
conflict or confusion—such that the trial court could have reasonably found that
appellant was guilty of violating the requirements of his civil commitment as a sexually
violent predator. See Brooks, 323 S.W.3d at 912.
Conclusion
Having overruled appellant’s sole point of error, we affirm the trial court’s
judgment of conviction. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
Do not publish.
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