Johnathan Lewis Helm v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00043-CR
JOHNATHAN LEWIS HELM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1276053D
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MEMORANDUM OPINION1
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A jury found Appellant guilty of sexual assault of a child under seventeen
and of prohibited sexual conduct and assessed his punishment at twenty years’
and ten years’ imprisonment, respectively. The trial court ordered the
punishments to run consecutively. Appellant brings one point attacking the
sufficiency of the evidence. We affirm.
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See Tex. R. App. P. 47.4.
The Evidence
K.A., the complainant, was Appellant’s stepdaughter. K.A. turned sixteen
in November 2010 shortly before Thanksgiving. K.A. said she and Appellant had
sex together during Thanksgiving in November 2010 in Oklahoma. However, on
other occasions, K.A. said the sex occurred in their home in Fort Worth, Texas.
K.A. had a baby in August 2011. DNA showed Appellant was the father.
Appellant admitted having sex with K.A. on Thanksgiving in Oklahoma in
2010. Appellant conceded doing some research on the charges against him and
said he thought the age of consent in Oklahoma was sixteen.
Appellant’s Point
In one point, Appellant contends the evidence is insufficient to prove he
sexually assaulted K.A. in the State of Texas because the only evidence showing
the offense occurred in Texas was impeachment evidence, which Appellant
maintains had no probative value. See Williams v. State, 565 S.W.2d 63, 65
(Tex. Crim. App. 1978) (stating that evidence admitted for a limited purpose may
not be used for another purpose); Key v. State, 492 S.W.2d 514, 516 (Tex. Crim.
App. 1973) (holding that evidence admitted only for impeachment purposes has
no probative value and cannot be used when determining sufficiency of the
evidence); Cherb v. State, 472 S.W.2d 273, 279 (Tex. Crim. App. 1971) (same).
Appellant argues venue was an element of the offenses and had to be proved
beyond a reasonable doubt.
2
Discussion
Venue is not an element of Appellant’s two offenses. See Tex. Penal
Code Ann. §§ 22.011(a)(2)(A), 25.02(a)(2) (West 2011); Schmutz v. State, 440
S.W.3d 29, 35 (Tex. Crim. App. 2014). Venue need be proven by only a
preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (West
2015); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), overruled on
other grounds by Schmutz, 440 S.W.3d at 37–39 (holding venue error does not
require automatic reversal but is subject to a harm analysis under rule 44.2(b) of
the Texas Rules of Appellate Procedure). Evidence is sufficient to prove venue if
a jury may reasonably conclude that the offense was committed in the county
alleged. Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet
ref’d); Schmutz v. State, No. 06-12-00059-CR, 2013 WL 1188994, at *2 (Tex.
App.—Texarkana March 22, 2013) (mem. op., not designated for publication),
aff’d, 440 S.W.3d at 31.
The party opposing evidence has the burden of objecting and requesting a
limiting instruction when the other party introduces the evidence. Turro v. State,
950 S.W.2d 390, 400 (Tex. App.—Fort Worth 1997, pet. ref’d). If evidence is
received without a proper limiting instruction, it becomes part of the general
evidence in the case and may be used as proof to the full extent of its rational
persuasive power. See Tex. R. Evid. 105(b)(1); Hammock v. State, 46 S.W.3d
889, 895 (Tex. Crim. App. 2001); Navarro v. State, 280 S.W.3d 405, 406–07
(Tex. App.—Amarillo 2008, no pet.) (stating where prior inconsistent statement of
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assault victim was offered to impeach her at trial and was admitted without a
limiting instruction, it was admissible for substantive purposes; court sustained
the jury’s finding of guilty in face of challenge to legal sufficiency on appeal);
Turro, 950 S.W.2d at 400.
K.A.’s earlier statements identifying Fort Worth as the location of the
offenses came into evidence on numerous occasions. For example, the
investigator from Child Protective Services, over a hearsay objection, said K.A.
told her the abuse happened in their home in Fort Worth. See Poindexter v.
State, 153 S.W.3d 402, 406–09 (Tex. Crim. App. 2005) (holding that once a trier
of fact has weighed the probative value of otherwise inadmissible hearsay
evidence, an appellate court cannot deny that evidence probative value or ignore
it in its sufficiency review). K.A. herself later twice admitted that she had told the
CPS investigator the offenses happened in their house in Fort Worth. Over a
leading objection, K.A. admitted writing the criminal investigator a letter in which
she identified Fort Worth as the location of the offenses. The letter itself was
admitted without any objection. K.A. even admitted telling the criminal
investigator it all occurred in Fort Worth. Finally, the caseworker from the
adoption center that K.A. had used said—again without any objection—that K.A.
reported to the center’s admissions department that the sexual encounter
happened in Fort Worth. On none of these instances did Appellant request
contemporaneous limiting instructions when the evidence was admitted. We
hold the evidence was admitted for all purposes. See Tex. R. Evid. 105(b)(1).
4
With this evidence, we hold that a jury could have reasonably concluded that the
offense was committed in Tarrant County as alleged. See Knabe, 836 S.W.2d at
839. We overrule Appellant’s point.
Conclusion
Having overruled Appellant’s point, we affirm the trial court’s judgments on
the two counts.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 4, 2015
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