Lucas Thomas v. State ( 2012 )


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  •                          NUMBER 13-11-00680-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    LUCAS THOMAS,                                                               Appellant,
    v.
    THE STATE OF TEXAS,                                                          Appellee.
    On appeal from the 148th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Garza, and Vela
    Memorandum Opinion by Justice Rose Vela
    A jury convicted appellant, Lucas Thomas, of aggravated sexual assault of a child,
    a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a), (e) (West Supp. 2011).
    After a punishment hearing, the jury assessed punishment at life imprisonment and a
    $10,000 fine. By two issues, appellant asserts: (1) the evidence is legally and factually
    insufficient to support his conviction, and (2) the punishment was disproportionate to the
    seriousness of the offense, in violation of the Eighth and Fourteenth Amendments to the
    United States Constitution. We affirm.
    I. FACTUAL BACKGROUND
    In October 2009, appellant helped his friend, Joann,1 move from Corpus Christi to
    Calallen, Texas. She let her two daughters, A.2 and G.B., ride in appellant's truck while
    he drove to Calallen. Eleven-year-old G.B. rode in the front-passenger seat, and A. rode
    in the back seat, where she fell asleep. During the trip to Calallen, appellant started
    rubbing G.B.'s thighs. She pretended to go to sleep, and he put his hand inside her
    panties. When the prosecutor asked G.B., "[W]hat do you call the girls' private part?",
    she said, "Just a private." Next, when the prosecutor asked her, "[W]hen he [appellant]
    put his hand inside of your panties, were his fingers inside or outside of your private?",
    she said, "Inside." When the trio arrived at Joann's house in Calallen, G.B. went to bed
    because she "was scared."
    G.B. visited her father, Juan, 3 during the Thanksgiving holidays of 2010. He
    testified that during this visit, G.B. told him Joann's friend, "Lucas," "touched her" and that
    this happened when "[t]hey were driving from Corpus to Calallen." When Juan asked
    her where Lucas touched her, she said, "'[O]n my flower,' in her vaginal area." When he
    asked her if Lucas touched her over her panties or under her panties, she said, "Under my
    panties.'" When he asked her, "'Well, did he stick anything in you or just rub or just touch
    you?'", she said, "'No, he stuck his finger in me.'"
    1
    Because of privacy reasons, we will not mention Joann's last name.
    2
    A.'s last name was not mentioned in the record, and she did not testify.
    3
    For privacy reasons, we will not mention Juan's last name.
    2
    On November 29, 2010, Carol McLaughlin, a certified pediatric sexual assault
    nurse examiner, examined G.B. at Driscoll Children's Hospital. When the prosecutor
    asked her, "Do you recall what [G.B.] told you about why she was . . . [at Driscoll
    Children's Hospital]?", she testified that "[G.B.] told me: . . . 'A man, Lucas, touched me
    in the private area, and she indicated her female sexual organ by pointing. He sticked
    his hand in my pants and touched in my private area.'" She found no abnormalities with
    any of the parts of G.B.'s genitalia. However, she said that taking into account that the
    sexual assault occurred about thirteen months prior to this exam, she would not expect to
    find any kind of trauma to G.B.'s body.
    Detective Brandi Moss testified that in November 2010, she scheduled G.B. for an
    interview at the Children's Advocacy Center (CAC). Ricardo Jimenez, the Program
    Director and Lead Forensic Interviewer at CAC, testified that on December 1, 2010, he
    conducted a forensic interview with G.B. The trial court admitted a copy of this interview
    in evidence as State's exhibit two,4 and the prosecutor played the interview before the
    jury.
    Dr. Paula Rosenstein, who has a doctorate degree in counselor education, works
    with child sex abuse victims.           She testified that "[t]he far majority [of outcries] are
    delayed," rather than "immediate" and that sometimes outcries "are delayed for years."
    When the prosecutor asked her, "[I]s there one explanation for why an outcry is delayed
    or hundreds?", she said, "[Y]ou can sum them up with the word fear, . . . ."
    4
    The appellate record does not include State's exhibit 2. This Court requested the Nueces
    County District Clerk's Office to provide the exhibit; however, that office was unable to locate the exhibit.
    Nevertheless, appellant does not argue that State's exhibit 2 contains any exculpatory information.
    3
    The defense rested and closed its case without calling any witnesses to testify.
    II. DISCUSSION
    A. Sufficiency of the Evidence
    In issue one, appellant contends the evidence is legally and factually5 insufficient
    to support his conviction.
    1. Standard of Review
    "The standard for determining whether the evidence is legally sufficient to support
    a conviction is 'whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt.'" Johnson v. State, 
    364 S.W.3d 292
    , 293–94 (Tex. Crim.
    App. 2012) (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)) (emphasis in original).
    In Malik v. State, the court of criminal appeals articulated the "standard for ascertaining
    what the 'essential elements of the crime' are; they are 'the elements of the offense as
    defined by the hypothetically correct jury charge for the case.'" 
    Id. at 294
    (quoting Malik,
    
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997)). "The hypothetically correct jury charge is
    one that at least 'accurately sets out the law, is authorized by the indictment, does not
    unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
    theories of liability, and adequately describes the particular offense for which the
    defendant was tried.'" 
    Id. (quoting Malik,
    953 S.W.2d at 240). The court of criminal
    appeals has "described the law 'as authorized by the indictment' to be 'the statutory
    elements of the offense . . . as modified by the charging instrument[.]'" 
    Id. (quoting Curry
    5
    The court of criminal appeals has abolished factual-sufficiency review. See Howard v. State,
    
    333 S.W.3d 137
    , 138 n.2 (Tex. Crim. App. 2011). Thus, we will only address appellant's legal-sufficiency
    challenge.
    4
    v. State, 
    30 S.W.3d 394
    , 404 (Tex. Crim. App. 2000)).
    2. Applicable Law
    The jury found appellant guilty of aggravated sexual assault of a child under the
    age of fourteen. See TEX. PENAL CODE ANN. § 22.021(a). As applicable here, appellant
    committed the offense if he intentionally or knowingly caused the penetration of the
    sexual organ of a child by any means, and the victim was younger than fourteen years of
    age. See 
    id. § 22.021(a)(1)(B)(i),
    (a)(2)(B). The testimony of G.B., as the child victim, is
    sufficient alone to support a conviction for aggravated sexual assault. See TEX. CODE
    CRIM. PROC. ANN. art. 38.07(a), (b)(1) (West 2005); Lee v. State, 
    186 S.W.3d 649
    , 655
    (Tex. App.—Dallas 2006, pet. ref'd).
    3. Analysis
    When the prosecutor asked eleven-year-old G.B., "[W]hen he [appellant] put his
    hand inside of your panties, were his fingers inside or outside of your private?", she said,
    "Inside." Her father, Juan, testified that when he asked G.B. where appellant touched
    her, she said, "'[O]n my flower,' in her vaginal area."   When he asked her, "'Well, did he
    stick anything in you or just rub or just touch you?'", she said, "'No, he stuck his finger in
    me.'" When the prosecutor asked Carol McLaughlin, the sexual assault nurse examiner,
    "Do you recall what [G.B.] told you about why she was . . . [at Driscoll Children's
    Hospital]?", she said, "[G.B.] told me: . . . 'A man, Lucas, touched me in the private area,
    and she indicated her female sexual organ by pointing. He sticked his hand in my pants
    and touched in my private area.'" Even though McLaughlin found no abnormalities with
    G.B.'s genitalia, she stated that taking into account that the reported sexual assault
    5
    occurred about thirteen months prior to G.B.'s exam, she would not expect to find any
    kind of trauma.
    "Penetration, within the meaning of section 22.021 [aggravated sexual assault] of
    the penal code, occurs so long as contact with the female sexual organ could reasonably
    be regarded by ordinary English speakers as more intrusive than contact with outer
    vaginal lips." Karnes v. State, 
    873 S.W.2d 92
    , 96 (Tex. App.—Dallas 1994, no pet.)
    (citing Vernon v. State, 
    841 S.W.2d 407
    , 409 (Tex. Crim. App. 1992)). "Penetration of
    the vaginal canal is not required to prove penetration." 
    Id. (citing Vernon,
    841 S.W.3d at
    409). Thus, even though Juan testified G.B. told him appellant touched her, "'[O]n my
    flower,'" G.B.'s testimony is unequivocal that penetration occurred. "The jury determines
    the credibility of the evidence, not the appellate court." 
    Id. G.B.'s testimony
    is legally
    sufficient to support the jury's finding.
    Viewing the evidence in the light most favorable to the verdict, we hold the jury
    could have found each element of the charged offense beyond a reasonable doubt. See
    
    Jackson, 443 U.S. at 319
    . We conclude the evidence is legally sufficient to support
    appellant's conviction for aggravated sexual assault of a child under the age of fourteen.
    Issue one is overruled.
    B. Disproportionality of Punishment
    In issue two, appellant contends his punishment was disproportionate to the
    seriousness of the offense, in violation of the Eighth and Fourteenth Amendments to the
    United States Constitution. The record does not show appellant objected at trial to the
    sentence of life imprisonment. In addition, he did not raise this argument in a motion for
    6
    new trial. Appellant has, therefore, waived this issue on appeal. See Curry v. State,
    
    910 S.W.2d 490
    , 497 (Tex. Crim. App. 1995) (stating that failure to object to cruel and
    unusual punishment at trial waives federal constitutional challenges to sentence as cruel
    and unusual punishment).          Nevertheless, even absent waiver, we conclude the
    sentence does not constitute cruel and unusual punishment.
    1. The Punishment Hearing
    During the punishment phase, the State presented several female witnesses, all of
    whom testified appellant sexually assaulted them when they were under seventeen years
    of age. J.R. testified appellant "raped me when I was 16 years old." She stated that
    when appellant was thirty-two years old, he drove her to the beach between North Padre
    and Port Aransas, Texas so she could watch the sunset over the water. After darkness
    fell, appellant locked the doors to his vehicle, reclined the front-passenger seat where she
    was sitting, and positioned himself between her legs. He took off her shorts and "force[d]
    . . . [her] to have sexual intercourse with him." She testified he put his penis inside of her
    vagina, and "[w]hen he finally was done, he pulled out and he came on my stomach. . . .
    [H]e got dressed and he told me that he was going to wait until my 17th birthday and him
    and his friends were all going to do it. . . ."
    A.G. was fourteen years old when she met appellant, who was thirty-one or
    thirty-two years old. She testified appellant "had me take my pants off, and then he took
    his shorts off. . . . And then he, basically, put my legs over my head" and "forced his
    penis inside . . . [my] vagina." Afterwards, appellant gave her $50 and told her "it didn't
    need to get out."
    7
    J.M. met appellant, who was her mother's friend, when she was ten or eleven
    years old. She testified that at the age of twelve, she was at appellant's house and that
    he "raped me in his bedroom." She explained that when she was asleep lying sideways
    she "woke up with him [appellant] inside of [m]e." She jumped off the bed, went to the
    bathroom, and saw that she was bleeding. Later, while still at his house, she laid down
    on the couch. Appellant "came out naked with a pillow covering his penis, and he said,
    "Don't tell anybody. If you do, I know people and I can just make one phone call." When
    the prosecutor asked her, "How long of a period of time did [appellant] sexually assault
    you?", she said, "From the time of the rape, from 12 to 16." When the prosecutor asked
    her, "[H]ow many times did he rape you?", she said, "Seven or eight." She testified that
    on another occasion, appellant "fondled" her "breast and . . . vaginal region."
    When C.M. was in junior high school, she met appellant, who was her mother's
    friend. She testified appellant "would try to touch [me] in areas that he shouldn't be
    touching, . . . ." When the prosecutor asked her, "And when you say he would touch you,
    what areas of your body would he touch you?", she said, "In between my legs and then
    my boobs." When the prosecutor asked her, "So the kind of things physically that would
    happen between the two of you would be a lot of . . . touching of your genitalia and
    touching of your breast?", she said, "Yes."
    Six-year-old K.T., who is appellant's niece, testified that when she and appellant
    were at her grandmother's house, appellant "tried to touch me in my private part, and he
    did, and he tried to show me his, so I ran away from him. . . ." When the prosecutor
    asked her, "When he did that stuff to you, did he say anything to you?", she said, "'Don't
    8
    tell,' and I pinky promised him, but I did tell."
    K.T.'s nine-year-old sister, A.T., testified that when she and K.T. were at their
    grandmother's house, appellant "touched my private part. . . . And he tried to show us
    his private." When the prosecutor asked A.T., "Did he put his hands on the inside of your
    pants?", she said, "Outside." When the prosecutor asked her, "And . . . did he take his
    private out . . . for you to see?", she said, "Yes." When asked, "And did you see it?", she
    said, "Yes. He tried to get us to touch it, but we didn't. . . ." A.T. testified she "tried to get
    him to stop messing with me, but he didn't."
    The defense did not call any witnesses to testify at the punishment phase.
    2. Applicable Law and Analysis
    The Eighth Amendment to the United States Constitution does not require strict
    proportionality between the crime and the sentence; rather, it forbids extreme sentences
    that are Agrossly disproportionate@ to the crime. Ewing v. California, 
    538 U.S. 11
    , 23
    (2003). The precise contours of the Agrossly disproportionate@ standard are unclear, but
    it applies only in Aexceedingly rare@ and Aextreme@ cases. See Lockyer v. Andrade, 
    538 U.S. 63
    , 73 (2003).
    The Texas Legislature is vested with the power to define crimes and proscribe
    penalties for these crimes. Manuel v. State, 
    357 S.W.3d 66
    , 85 (Tex. App.—Tyler 2011,
    pet. ref'd); see Davis v. State, 
    905 S.W.2d 655
    , 664 (Tex. App.—Texarkana 1995, pet.
    ref'd); see also Simmons v. State, 
    944 S.W.2d 11
    , 15 (Tex. App.—Tyler 1996, pet. ref'd).
    Texas courts have repeatedly held that punishment which falls within the limits proscribed
    by a valid statute is not excessive, cruel, or unusual. 
    Manuel, 357 S.W.3d at 85
    ; see
    9
    Harris v. State, 
    656 S.W.2d 481
    , 486 (Tex. Crim. App. 1983); Jordan v. State, 
    495 S.W.2d 949
    , 952 (Tex. Crim. App. 1973); 
    Davis, 905 S.W.2d at 654
    .
    In the instant case, appellant was convicted of aggravated sexual assault of a
    child. See TEX. PENAL CODE ANN. § 22.021. The crime is a first-degree felony, with a
    punishment range of imprisonment for life or for any term of not more than ninety-nine
    years or less than five years, and a possible fine not to exceed $10,000. See 
    id. § 12.32(a),
    (b) (West 2011). The jury assessed punishment at life imprisonment and a
    $10,000 fine, which fell within the punishment range set forth by the legislature.
    Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.
    
    Manuel, 357 S.W.3d at 85
    .
    However, this does not end the inquiry. Texas courts recognize that a prohibition
    against a grossly disproportionate sentence survives under the federal constitution apart
    from any consideration whether the punishment assessed is within the statute=s
    punishment range. Winchester v. State, 
    246 S.W.3d 386
    , 388 (Tex. App.—Amarillo
    2008, pet. ref=d); Mullins v. State, 
    208 S.W.3d 469
    , 470 (Tex. App.—Texarkana 2006, no
    pet.). The United States Supreme Court has "recognized that the Eighth Amendment
    provides a limited proportionality component." See Harmelin v. Michigan, 
    501 U.S. 957
    ,
    984-86 (1991). Under the three-part test announced in Solem v. Helm, 
    463 U.S. 277
    ,
    292 (1983), the proportionality of a sentence is evaluated by considering (1) the gravity of
    the offense and the harshness of the penalty, (2) the sentences imposed on other
    criminals in the same jurisdiction, and (3) the sentences imposed for commission of the
    same crime in other jurisdictions. The application of the Solem test has been modified
    10
    by Texas courts and the United States Fifth Circuit Court of Appeals in light of the United
    States Supreme Court's decision in Harmelin to require a threshold determination that the
    sentence is grossly disproportionate to the crime before addressing the remaining
    elements. See, e.g., McGruder v. Puckett, 
    954 F.2d 313
    , 316 (5th Cir. 1992); see also
    Jackson v. State, 
    989 S.W.2d 842
    , 845-46 (Tex. App.—Texarkana 1999, no pet.).
    In determining whether appellant's sentence is grossly disproportionate, we are
    guided by the holding in Rummel v. Estelle, 
    445 U.S. 263
    (1980). In Rummel, the Court
    addressed the proportionality claim of an accused who had received a mandatory life
    sentence under a prior version of the Texas habitual-offender statute for a conviction of
    obtaining $120.75 by false pretenses. 
    Id. at 266.
    A life sentence was imposed because
    the accused had two prior felony convictions—one for fraudulent use of a credit card to
    obtain $80 worth of goods or services and the other for possessing a forged check in the
    amount of $28.36. 
    Id. After recognizing
    the legislative prerogative to classify offenses
    as felonies and, further, considering the purpose of the habitual-offender statute, the
    Court determined the accused's mandatory life sentence did not constitute cruel and
    unusual punishment. 
    Id. at 285.
    In the instant case, the punishment showed appellant had an extensive history of
    sexually   assaulting    children.      Furthermore,     the   offense    committed     by
    appellant—aggravated sexual assault of a child—was more serious than those
    committed by the accused in Rummel, and appellant's life sentence was the same
    sentence upheld by the Rummel Court. Thus, it follows that if the life sentence in
    Rummel was not unconstitutionally disproportionate, then neither is the sentence
    11
    assessed against appellant in this case, especially when considering the extensive
    punishment evidence. Because we do not find the threshold test to be satisfied, we need
    not apply the remaining elements of the Solem test. See 
    Manuel, 357 S.W.3d at 86
    .
    Issue two is overruled.
    III. CONCLUSION
    We affirm the judgment of the trial court.
    ROSE VELA
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    6th day of December, 2012.
    12