Johnny Patterson v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00350-CR
02-10-00351-CR
JOHNNY PATTERSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In seven points, Appellant Johnny Patterson appeals his convictions for
one count of improper photography, one count of indecency with a child, and two
counts of aggravated sexual assault of a child. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
The State charged Patterson with one count of indecency with a child and
two counts of aggravated sexual assault of a child in cause number F-2007-
1144-B and two counts of improper photography and three counts of possession
of child pornography in cause number F-2008-0517-B. On July 19, 2010, the day
the jury was impaneled and sworn, Patterson filed a motion to quash the two
counts of improper photography, arguing that the State omitted an essential
element—lack of consent—and that this violated his due process rights. The trial
court overruled this motion.
The jury found Patterson guilty on all counts in cause number F-2007-
1144-B and assessed ten years‘ imprisonment for the indecency count, life
imprisonment for each count of aggravated sexual assault, and an additional
$10,000 fine for each count.2 The jury also found him guilty of one count of
improper photography, sentenced him to two years‘ imprisonment, and assessed
a $10,000 fine.3
2
Count one (aggravated sexual assault of a child by penetration) alleged,
in pertinent part, that Patterson intentionally or knowingly caused the penetration
of J.P.‘s sexual organ by his finger on or about August 1, 2004. Count two
(aggravated sexual assault of a child by contact) alleged, in pertinent part, that
Patterson intentionally or knowingly caused his sexual organ to contact J.P.‘s
sexual organ on or about July 20, 2005.
3
This count alleged, in pertinent part, that improper photography occurred
on or about October 10, 2006.
2
III. Indictment
In his third point, Patterson complains of error in the improper photography
indictment, arguing that the State failed to include the ―without consent‖ element.
However, if a defendant fails to object to an alleged error in an indictment before
the date on which the trial on the merits commences, he forfeits the right to
object to the error and may not raise the objection on appeal. See Tex. Code
Crim. Proc. Ann. art. 1.14(b) (West 2005); Sanchez v. State, 138 S.W.3d 324,
330 (Tex. Crim. App. 2004); Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim.
App. 1998) (―Now a defect of substance in a charging instrument does not
automatically render a judgment void.‖). Therefore, by failing to file his motion to
quash before trial began on July 19, 2010, Patterson has waived this complaint.
See Sanchez, 138 S.W.3d at 329–30 (recognizing that trial on the merits begins
when the jury is impaneled and sworn); State v. Lohse, 881 S.W.2d 171, 171
(Tex. App.—Houston [1st Dist.] 1994, no pet.) (―A motion to quash filed on the
day of trial is too late.‖). Accordingly, we overrule Patterson‘s third point.
IV. Jury Charge
In his fourth and fifth points, Patterson claims that the trial court denied him
due process by instructing the jury on lack of consent when the State failed to
include that element of improper photography in the indictment.
In contrast to the indictment, which serves a notice function to the
defendant, the purpose of the jury charge is to ―inform the jur[ors] of the
applicable law and guide them in its application to the case.‖ Delgado v. State,
3
235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Dinkins v. State, 894 S.W.2d 330,
339 (Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995). Therefore, the trial
court ―must ensure that all of the law applicable to the criminal offense that is set
out in the indictment or information is incorporated into the jury charge.‖
Delgado, 235 S.W.3d at 249.
The jury instructions may not expand the indictment. Reed v. State, 117
S.W.3d 260, 265 (Tex. Crim. App. 2003) (holding that the trial court improperly
broadened the indictment by including ―recklessly‖ in the jury instructions when
the indictment alleged ―intentionally‖ and ―knowingly‖). Instead, the instructions
must distinctly set forth the law applicable to the case and set out all of the
essential elements of the offense. Martin v. State, 200 S.W.3d 635, 639 (Tex.
Crim. App. 2006). Indeed, ―[a] jury charge is fundamentally defective if it omits
an essential element of the offense or authorizes conviction on a set of facts that
do not constitute an offense.‖ Green v. State, 233 S.W.3d 72, 79–80 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref‘d) (citing Zuckerman v. State, 591
S.W.2d 495, 496 (Tex. Crim. App. [Panel Op.] 1979)). In our review of a jury
charge, we first determine whether error occurred; if error did not occur, our
analysis ends. See Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App.
1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).
The version of section 21.15 of the penal code in effect on the date of the
offense included the following:
4
A person commits [improper photography] if the person:
(1) photographs or by videotape or other electronic means visually
records another: (A) without the other person‘s consent; and
(B) with intent to arouse or gratify the sexual desire of any
person . . . .
Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b)(1), 2003 Tex.
Gen. Laws 1771, 1771 (amended 2007) (current version at Tex. Penal Code
Ann. § 21.15(b) (West 2011)). Therefore, to properly set out all of the essential
elements of improper photography, the jury charge had to include the ―without
consent‖ provision. See id.; Green, 233 S.W.3d at 81 (noting that the defective
instruction failed to include the elements required to constitute the offense).
Rather than broadening the theory set forth in the indictment, the inclusion of the
―without consent‖ provision properly narrowed the offense because, absent this
provision, the photography could not have been ―improper.‖ See Act of June 20,
2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b), 2003 Tex. Gen. Laws 1771,
1771 (amended 2007); Curry v. State, 30 S.W.3d 394, 402 (Tex. Crim. App.
2000) (noting that ―[r]estraint is not restraint unless it is without consent‖ and
stating that, because there are no alternatives to ―without consent‖ in a restraint
charge, there would be no need for the State to make this allegation in a restraint
indictment in order to provide notice). Because we determine that the jury
instruction was not erroneous, see Abdnor, 871 S.W.2d at 731–32, we overrule
Patterson‘s fourth and fifth points.
5
V. Outcry Witness
In his second and seventh points, Patterson complains that the trial court
abused its discretion by allowing the forensic interviewer to be the outcry witness
for both counts of aggravated sexual assault of a child.
A. Trial Testimony
1. J.P.
J.P. is Patterson‘s daughter, who was fourteen years old at the time of trial.
She testified that when she was in the third grade, she awoke on her back to find
her father lying on his side next to her in her bed. She testified that he had his
hand underneath the top waistband of her pants and was touching her
inappropriately. She testified that he was touching her ―private parts‖ 4 but that at
no point did his finger ever go inside of her private parts. J.P. stated that she
moved his hand away, got out of bed, and told her mother what had happened.
J.P. testified that on another occasion, she was in the bathtub when
Patterson entered the bathroom, undressed, and got into the bathtub with her.
He asked J.P. to sit with him, and she did so, facing him. She testified that she
felt his private part touch hers but that it did not appear that he was trying to
penetrate her. She recalled that she did not tell her mother about this incident
because Patterson told her not to, and she was scared.
4
She clarified that by ―private parts,‖ she meant the ―front part that you pee
from.‖
6
J.P. testified that in March 2007, she spoke with a Child Protective
Services (CPS) worker about the sexual abuse and discussed the abuse in great
detail with Julianne McKamie,5 a forensic interviewer at the Children‘s Advocacy
Center. J.P. stated that other than McKamie, J.P. had not spoken in detail about
the abuse with any other adult, except that she told her mother about the
bedroom incident.
2. J.P.’s Mother
Jasmine,6 Patterson‘s ex-wife and J.P.‘s mother, testified that in August
2004, she went into J.P.‘s bedroom to find J.P. lying in bed between the wall and
Patterson. J.P. told her that she wanted to get up, so Jasmine helped her out of
bed and asked her if anything was wrong. Jasmine testified as follows:
Q. What did she say happened?
A. She told me that Daddy had put his hands under her panties and
was touching her privates.
Q. Did she say how he was touching her privates?
A. At first she just told me, you know, that she was -- you know, that
he had touched her. And so then I asked her, well, you know, how
did he touch you? And she just kind of kept telling me that, you
know, he was touching her.
So, you know, I asked her, I was like, well, did he put his fingers on
you or in you? And she just, well, he tried to put them in me. I
5
By the date of trial, Julianne Khan had changed her last name to
McKamie.
6
J.P.‘s mother‘s initials are also J.P., so for clarity, we will refer to her using
the fictitious name ―Jasmine.‖
7
asked her, did he put them all the way in you? No, he didn‘t get
them all the way in me but he was trying.
3. McKamie
During J.P.‘s forensic interview7 with McKamie on March 28, 2007, J.P.
told McKamie that on the occasion in her bed, she woke up that morning to find
Patterson lying next to her and touching her ―front private.‖ 8 She said that his
hand would touch her skin, that he would stop, and that his hand would go back
underneath her clothes. She also said that Patterson‘s finger pushed on her
front private and went ―inside and out.‖ She clarified that his finger ―would just go
in and out and then it would hurt really bad.‖ She said that ―it really hurt‖ and that
later it felt ―like something was stinging.‖
Additionally, J.P. told McKamie that, on the occasion in the bathtub,
Patterson‘s ―private touched her private.‖ She elaborated that he was trying to
put his private part ―inside,‖ specifically ―the middle . . . in between the front and
the back,‖ the same way that his finger did on the occasion in her bed. She also
said that his finger did the same thing that it did on the occasion in her bed. She
stated that Patterson told her not to tell Jasmine about the bathtub incident but
that she told Jasmine about it later. J.P. said that other than talking to McKamie
7
The State offered into evidence a segment of the DVD recording of J.P.‘s
forensic interview with McKamie. Patterson objected to admission of the DVD,
arguing that J.P. made her outcry statement to her mother rather than to
McKamie and that, therefore, the DVD was hearsay. The trial court admitted,
and the State published before the jury, a thirteen-minute segment of the DVD.
8
J.P. identified the ―front private‖ as the part that a person uses to ―go pee.‖
8
and to Jasmine, she had not talked to anyone else about Patterson touching her
inappropriately.
4. Lindsey Green
Green testified that she was the CPS worker assigned to J.P.‘s case. She
arrived unannounced at the Patterson home and spoke with J.P. for twenty or
thirty minutes before notifying law enforcement of the allegation and setting up a
forensic interview with a member of the advocacy center. Green explained that
CPS found, by a preponderance of the evidence, ―reason to believe‖ that the
allegations were true, but she clarified that this was not a judicial determination
and was not a reasonable doubt standard.
5. Denton County Sheriff’s Office Investigator Toby Crow
Investigator Crow testified that he read the CPS referral when he was
assigned to investigate the allegations against Patterson. Next, he observed the
forensic interview at the advocacy center, he interviewed Jasmine, he obtained a
warrant, and Patterson was arrested.
B. Applicable Law
The trial court has broad discretion in determining the admissibility of
evidence. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). We
review the trial court‘s decision to admit an outcry witness‘s testimony for an
abuse of discretion and will not reverse the trial court‘s ruling if it is within the
zone of reasonable disagreement. Id. (recognizing that a clear abuse of
9
discretion must be established by the record); see Tear v. State, 74 S.W.3d 555,
558 (Tex. App.—Dallas 2002, pet. ref‘d), cert. denied, 538 U.S. 963 (2003).
Article 38.072 creates a statutory exception to the general rule excluding
hearsay evidence for a child abuse victim‘s initial outcry statement. Klein v.
State, 191 S.W.3d 766, 779 (Tex. App.—Fort Worth 2006), rev’d on other
grounds, 273 S.W.3d 297 (Tex. Crim. App. 2008); see Tex. Code Crim. Proc.
Ann. art. 38.072 (West Supp. 2011). The outcry statute applies only to the child
victim‘s statements that, in pertinent part, (1) describe the alleged offense and (2)
were made to the first person, eighteen years of age or older, other than the
defendant, to whom the child made a statement about the offense. Tex. Code
Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (3). A statement about the offense is a
statement that ―in some discernible manner describes the alleged offense‖ and
gives ―more than a general allusion of sexual abuse.‖ Garcia, 792 S.W.2d at 91.
The outcry exception is only available for one witness ―unless the child
revealed discrete occurrences of the same offense, or revealed different
offenses, to separate adults.‖ Reynolds v. State, 227 S.W.3d 355, 369 (Tex.
App.—Texarkana 2007, no pet.); see Quinones v. State, Nos. 13-10-00140-CR,
13-10-00141-CR, 13-10-00142-CR, 2011 WL 3841586, at *9 (Tex. App.—Corpus
Christi Aug. 25, 2011, no pet.) (mem. op., not designated for publication) (“[S]o
long as separate outcry witnesses testify about separate offenses, the testimony
of each is admissible.‖) (citing Broderick v. State, 35 S.W.3d 67, 73–74 (Tex.
App.—Texarkana 2000, pet. ref‘d) (―[A]n outcry witness is not person-specific,
10
but event-specific.‖)). For instance, ―[i]f the child victim first described one type of
abuse to one outcry witness, and first described a different type of abuse to a
second outcry witness, the second witness could testify about the different
instance of abuse.‖ Tear, 74 S.W.3d at 559.
However, the outcry statement must actually describe different events and
―not simply [be] a repetition of the same event as related by the victim to different
individuals.‖ Broderick, 35 S.W.3d at 73. Indeed, ―the proper outcry witness is
not to be determined by comparing the statements the child gave to different
individuals and then deciding which person received the most detailed statement
about the offense.‖ Brown v. State, 189 S.W.3d 382, 386 (Tex. App.—Texarkana
2006, pet. ref‘d).
Further, the child victim‘s statement to the outcry witness must describe
the alleged offense, not just any offense. Tex. Code Crim. Proc. Ann. art.
38.072, § 2(a)(1)(A); Brown, 189 S.W.3d at 386 (reviewing victim‘s description of
the offense and noting that it tracked the language of the statute defining the
offense for which appellant was convicted); see Pierce v. State, No. 10-09-
00320-CR, 2010 WL 2683052, at *1–2 (Tex. App.—Waco July 7, 2010, no pet.)
(mem. op., not designated for publication) (holding that trial court did not abuse
its discretion by permitting forensic interviewer‘s outcry testimony that appellant
had inserted his tongue into victim‘s vagina when other witness‘s testimony that
appellant had touched victim‘s vagina did not describe charged offense—
appellant penetrating victim‘s sex organ with his tongue—in any discernible way);
11
Sledge v. State, No. 03-03-00092-CR, 2004 WL 438958, at *1–3 (Tex. App.—
Austin Mar. 11, 2004, no pet.) (mem. op., not designated for publication) (holding
that when both allegations arose out of the same act, allowing testimony of both
outcry witnesses was not an abuse of discretion when one witness‘s testimony
went to the indecency with a child allegation and other witness‘s testimony went
to the penetration element of the aggravated sexual assault allegation); Turner v.
State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref‘d) (holding that
officer was the appropriate outcry witness because, even though victim told
counselor that appellant penetrated her vagina with his finger, she told officer,
not counselor, that appellant penetrated her with his penis, as alleged in the
indictment).
C. Analysis
1. Count One—Penetration
In his second point, Patterson contends that Jasmine was the proper
outcry witness for count one.
a. Proper Outcry Witness
First, Patterson argues that Jasmine was the first person to whom J.P.
made a statement that was more than a general allusion of sexual abuse, even
though J.P. did not tell her that Patterson penetrated her sexual organ.
12
i. Error
Because Jasmine testified as an outcry witness,9 the question is whether
McKamie was also a proper outcry witness. See Fuller v. State, No. 06-00-
00032-CR, 2001 WL 691249, at *1–2 (Tex. App.—Texarkana June 21, 2001, pet.
ref‘d) (not designated for publication) (permitting mother to testify as the first
person to whom the victim related the offense in a discernible manner—by
stating that appellant pushed victim on the bed and laid on top of her—and also
permitting detective to testify about the particular act—that appellant fondled her
breasts—as alleged in the indictment) (citing Broderick, 35 S.W.3d at 73–74, and
Turner, 924 S.W.2d at 183). Our analysis considers whether J.P.‘s statement to
McKamie (1) described the alleged offense in a discernible manner, see Tex.
Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A); Garcia, 792 S.W.2d at 91;
Brown, 189 S.W.3d at 386, and (2) described different events such that the
statement was ―not simply a repetition of the same event as related by the victim
to different individuals.‖ See Broderick, 35 S.W.3d at 73.
A person commits aggravated sexual assault of a child by penetration
when he, in pertinent part, intentionally or knowingly causes the penetration of a
child‘s sexual organ by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i)
(West Supp. 2011). As Patterson implicitly concedes, J.P.‘s statement to
9
Patterson does not complain that Jasmine was not a proper outcry
witness but, rather, contends that she was the only proper outcry witness.
Therefore, we do not address the trial court‘s decision to let Jasmine testify as an
outcry witness. See Tex. R. App. P. 47.1.
13
McKamie sufficiently described this offense as alleged in count one of the
indictment when she explained to McKamie that she awoke that morning in her
bed to find Patterson‘s finger pushing on her front private part and going ―inside
and out.‖ See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (3); Garcia,
792 S.W.2d at 91; Sledge, 2004 WL 438958, at *3. Because J.P. described the
alleged offense to McKamie in a discernible manner, McKamie was a proper
outcry witness as long as the published portion of J.P.‘s statement to McKamie
did not repeat the same events about which Jasmine testified. See Garcia, 792
S.W.2d at 91; Brown, 189 S.W.3d at 386; Broderick, 35 S.W.3d at 73 (holding
that officer was not a proper outcry witness for the ―touching‖ allegation because
victim had previously told mother the same story in a discernible manner but that
officer was the proper outcry witness for the allegation that appellant licked
victim‘s genitals because officer was the first person to whom victim told that
portion of the story).
McKamie was the first person to whom J.P. described the act of
penetration in a discernible manner when J.P. said that Patterson‘s finger went
―in and out‖ of her front private part. See Garcia, 792 S.W.2d at 91. While J.P.
had previously told Jasmine that Patterson did not get his fingers ―all the way in,‖
it was within the zone of reasonable disagreement for the trial court to treat this
ambiguous statement as a denial of penetration and, thus, not an outcry
statement. See Divine v. State, 122 S.W.3d 414, 419 (Tex. App.—Texarkana
2003, pet. ref‘d) (―[T]he child did not make an outcry about penetration to the
14
grandmother, but did make such an outcry to the interviewer. The fact the child
denied penetration had occurred in her statement to the grandmother does not
make the later outcry inadmissible, or change its nature.‖); Tear, 74 S.W.3d at
558. Therefore, it was not an abuse of discretion for the trial court to permit
McKamie to be the outcry witness for the specific act of penetration. See Tear,
74 S.W.3d at 558; Fuller, 2001 WL 691249, at *1–2 (holding that trial court did
not abuse its discretion by permitting detective to testify in ―a limited fashion‖
about only the particular act not covered by mother‘s testimony).
However, when J.P. told McKamie that she woke up to find Patterson lying
next to her, putting his hand underneath her clothing, and touching the skin on
the outer portion of her front private part, J.P. had already made similar
statements regarding this touching to Jasmine. Therefore, these statements to
McKamie constituted ―a repetition of the same event as related by the victim to
different individuals.‖ See Broderick, 35 S.W.3d at 73.
Instead of comparing these statements and deciding which person
received the most detailed statement about the offense, see Brown, 189 S.W.3d
at 386, we hold that Jasmine, not McKamie, was the proper outcry witness for
these statements that, for the first time, described the touching in a discernible
manner. See Garcia, 792 S.W.2d at 91. Therefore, the trial court abused its
discretion by allowing the State to play a longer segment of the video than
necessary—J.P.‘s entire statement to McKamie regarding the August 1
incident—and not limiting the published portion of the video regarding this count
15
to the segment relating only to penetration. See Tear, 74 S.W.3d at 558;
Broderick, 35 S.W.3d at 74 (holding that trial court abused its discretion by not
limiting second outcry witness‘s testimony to only the additional act about which
victim told him).
ii. Harm
Having found error, we must conduct a harm analysis to determine
whether the error calls for reversal. Tex. R. App. P. 44.2. The admission of
inadmissible hearsay constitutes nonconstitutional error, Broderick, 35 S.W.3d at
74, and it will be considered harmless if we, on examination of the entire record,
are reasonably assured that the error did not influence the jury verdict or had no
more than a slight effect, such as when ―substantially the same evidence‖ is
admitted elsewhere without objection. Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App.
1991).
Here, J.P. testified without objection about the alleged touching. This
evidence was substantially similar to the portion of McKamie‘s interview with J.P.
that was improperly admitted. See Mayes, 816 S.W.2d at 88; Fuller, 2001 WL
691249, at *3 (holding that error in permitting two witnesses to testify to some
degree about the same hearsay statement was harmless because the victim
testified about the same events in detail); Broderick, 35 S.W.3d at 74 (holding
that the trial court‘s error in admitting improper outcry witness testimony was
harmless in part because the victim testified at trial about the same details).
16
Therefore, based on the record as a whole, we are reasonably assured that
allowing the improper outcry testimony did not influence the jury verdict or had
but a slight effect, and we find this error to be harmless. See Johnson, 967
S.W.2d at 417. Accordingly, we overrule this portion of Patterson‘s second point.
b. Notice
Next, Patterson argues that the State failed to give sufficient notice of its
intent to call McKamie as the outcry witness for count one because it had
designated Jasmine, not McKamie, as the outcry witness for that count.10
i. Error
Article 38.072 requires that the party intending to offer the outcry statement
must timely provide the adverse party with notice of its intent to offer the
statement, the name of the witness through whom it intends to offer the
statement, and a written summary of the statement. Tex. Code Crim. Proc. Ann.
art. 38.072, § 2(b)(1); Long, 800 S.W.2d at 547 (recognizing that these provisions
are mandatory).
The State‘s timely motion to admit J.P.‘s hearsay statements specified that
it would seek to admit statements ―made by [J.P.] to the witnesses [Jasmine]
Patterson (Count I) and Julie [McKamie] (Count II & III).‖ Also, the State
attached a written summary detailing J.P.‘s statement to McKamie, which
10
Patterson‘s hearsay objection at trial preserved his notice complaint.
See Long v. State, 800 S.W.2d 545, 547–48 (Tex. Crim. App. 1990) (holding that
a defendant‘s hearsay objection is sufficient to preserve error for any failure to
comply with article 38.072).
17
included the statements that we set out above describing penetration. Therefore,
the State complied with the statute insofar as the State notified Patterson of its
intent to offer J.P.‘s statement to McKamie and provided Patterson with a written
summary of the statement. See Tex. Code Crim. Proc. Ann. art. 38.072, §
2(b)(1). However, a ―statement‖ under article 38.072 is one that describes the
alleged offense, not just any offense, and an outcry witness is offense-specific.
See id. § 2(a)(1)(A); Broderick, 35 S.W.3d at 73. Therefore, we conclude that
because the State indicated that Jasmine, rather than McKamie, would be the
witness through whom it intended to offer J.P.‘s statement regarding count one,
the State did not strictly comply with article 38.072‘s requirement to identify ―the
name of the witness through whom it intends to offer the statement.‖ See Tex.
Code Crim. Proc. Ann. art. 38.072, § 2(b)(1)(B).
ii. Harm
Because the State failed to comply with this mandatory notice requirement,
we must again conduct a harm analysis pursuant to rule 44.2(b) and disregard
the error if it did not affect Patterson‘s substantial rights. See Tex. R. App. P.
44.2(b); Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992); Wheeler v.
State, 79 S.W.3d 78, 84 (Tex. App.—Beaumont 2002, no pet.). The purpose of
article 38.072‘s notice requirement is to prevent a defendant from being surprised
at trial by the outcry testimony. Gabriel v. State, 973 S.W.2d 715, 719 (Tex.
App.—Waco 1998, no pet.). Therefore, in deciding if a failure to comply with this
requirement is harmless error, we review the record to determine whether
18
Patterson was actually surprised by the outcry evidence and was prejudiced by a
lack of notice. See Zarco v. State, 210 S.W.3d 816, 832 (Tex. App.—Houston
[14th Dist.] 2006, no pet.); Upton v. State, 894 S.W.2d 426, 429 (Tex. App.—
Amarillo 1995, pet. ref‘d).
Patterson did not argue actual surprise either at trial or in his brief, nor
does the record reflect that he was surprised by the outcry witness evidence.
See Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.—Texarkana 2009, pet.
ref‘d) (stating that appellant failed to identify any harm and that, even if he had, it
would not have been supported by the record); Zarco, 210 S.W.3d at 832–33
(holding that appellant was not harmed because he did not argue actual surprise
at trial or on appeal and because he could not reasonably have done so based
on the record). Instead, the record shows that Patterson received timely notice
of the statement itself; the State only failed to specify that it would offer this
statement to prove count one. See Zarco, 210 S.W.3d at 832–33 (―In actuality,
appellant did receive sufficient notice of the statement itself; only the identity of
the witness information was tardy.‖). Therefore, Patterson had actual notice of
the State‘s intent to use the outcry testimony and was not harmed by the notice
error. See Berotte v. State, 992 S.W.2d 13, 19 (Tex. App.—Houston [1st Dist.]
1997, pet. ref‘d) (―[A]ny error was harmless because appellant had actual notice
of the State‘s intent to use the outcry testimony.‖); Gottlich v. State, 822 S.W.2d
734, 737 (Tex. App.—Fort Worth 1992, pet. ref‘d) (―[W]e hold that [appellant] had
adequate notice of the actual content of the outcry statement and could not have
19
suffered any surprise or harm from the outcry testimony.‖), overruled on other
grounds by Curry v. State, 861 S.W.2d 479 (Tex. App.—Fort Worth 1993, pet.
ref‘d). Accordingly, we overrule Patterson‘s second point.
2. Count Two—Contact
In his seventh point, Patterson argues that Green, rather than McKamie,
was the appropriate outcry witness for count two. Specifically, Patterson claims
that it is clear that J.P. described aggravated sexual assault of a child by contact
to Green because Green spoke with J.P. for twenty minutes, Green had reason
to believe that the allegations were true, and J.P.‘s statement to Green led to
Patterson‘s arrest.
A person commits aggravated sexual assault of a child by contact when
he, in pertinent part, intentionally or knowingly causes his sexual organ to contact
the sexual organ of a child. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (West
Supp. 2011). We may only find an abuse of discretion if it is established by the
record, see Garcia, 792 S.W.2d at 92, and the record reflects that J.P. told
McKamie that Patterson caused his sexual organ to contact her sexual organ
during the bathtub incident. Therefore, J.P. described the alleged offense in a
discernible manner such that McKamie was the appropriate outcry witness as
long as she was the first adult to whom J.P. made this statement. See Tex.
Code Crim. Proc. Ann. art. 38.072, § 2(a)(1)(A), (3); Garcia, 792 S.W.2d at 91.
The record is devoid of any indication that J.P. made a statement to Green that
related to this allegation. Because we cannot determine from the record what
20
J.P. said to Green, we conclude that the trial court did not abuse its discretion by
ruling, on the evidence before it, that McKamie was the proper outcry witness for
count two. See Garcia, 792 S.W.2d at 91–92 (holding that, in the absence of
evidence in the record regarding what victim told ―witness A,‖ trial court did not
abuse its discretion by ruling that ―witness B‖ was the proper outcry witness).
Accordingly, we overrule Patterson‘s seventh point.
VI. Sufficiency
In his first and sixth points, Patterson complains that the evidence at trial
was insufficient to support his convictions on one count of aggravated sexual
assault of a child and on improper photography.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
21
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Isassi, 330 S.W.3d at 638.
B. Count One—Penetration
In his first point, Patterson argues that the evidence of penetration was
insufficient because J.P.‘s statement to McKamie did not prove penetration
beyond a reasonable doubt.
1. Additional Trial Testimony
Paula Fornara, a sexual assault nurse examiner, testified that the hymen is
―a collar around the opening to the vagina.‖ She further testified that before a
female goes through puberty, the hymen is very sensitive and that if someone
tried to touch or penetrate it, it would be excruciatingly painful.11
11
The State recalled Jasmine, who testified that J.P. began puberty in the
summer of 2008 at the end of her sixth-grade year.
22
2. Analysis
―[A] child victim‘s outcry statement alone can be sufficient to support a
conviction for aggravated sexual assault.‖ Tear, 74 S.W.3d at 560. While
certainly not uncontroverted, J.P.‘s statement to McKamie that Patterson‘s finger
pushed on her private part, went ―inside and out,‖ and caused her pain supports
the jury‘s finding that Patterson intentionally caused his finger to penetrate J.P.‘s
sexual organ. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i); Vernon v. State,
841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (holding that evidence was
sufficient to prove penetration when victim testified that appellant touched the
outside of her vagina and that she felt pain and discomfort when he pressed on
it). Furthermore, the pain that J.P. described as hurting ―really bad‖ and later
feeling ―like something was stinging‖ is consistent with the excruciating pain that
Fornara testified is typical if someone were to touch or penetrate the hymen
surrounding the opening of the vagina of a prepubescent female, which J.P. was
at the time. Based on J.P.‘s outcry alone, there was sufficient evidence to
support the jury‘s finding of guilt on count one of digital penetration. See Tear,
74 S.W.3d at 561.
It was the jury‘s responsibility to draw inferences from J.P.‘s statement to
Jasmine that Patterson tried to get his fingers inside of her but did not get them in
all of the way. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330
S.W.3d at 638. And we do not substitute our judgment for that of the jury, see
Williams, 235 S.W.3d at 750, but instead presume that the jury resolved any
23
conflicting inferences in favor of a finding of digital penetration and defer to that
resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d
at 638. In doing so, we conclude that it was reasonable for the jury to infer that,
based on the cumulative force of J.P.‘s statements to McKamie, J.P.‘s
ambiguous statement to Jasmine supported the jury‘s finding that Patterson‘s
finger penetrated J.P.‘s sexual organ. See Steadman v. State, 280 S.W.3d 242,
247–48 (Tex. Crim. App. 2009) (―[T]actile contact beneath the fold of
complainant[‘]s external genitalia amounts to penetration within the meaning of
the Aggravated Sexual Assault statute, since vaginal penetration is not required,
but only penetration of the ‗female sexual organ.‘‖ (quoting Vernon, 841 S.W.2d
at 409–10)); Hooper, 214 S.W.3d at 16–17.
It was also the jury‘s responsibility to weigh this evidence with J.P.‘s
conflicting testimony that Patterson‘s finger did not penetrate her at any point.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
Again, we may not re-evaluate the weight and credibility of this evidence and
substitute our judgment for that of the jury. See Williams, 235 S.W.3d at 750.
We only conclude that it is reasonable, based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the verdict,
for the jurors, who were able to observe J.P.‘s demeanor both on the stand and
in her forensic interview, to have given little weight to or discredited J.P.‘s
recantation testimony that occurred almost six years after the August 2004
incident. See Hooper, 214 S.W.3d at 16–17; Chambers v. State, 805 S.W.2d
24
459, 461 (Tex. Crim. App. 1991) (―The jury observed the complainant‘s
demeanor and was entitled not only to reconcile any such conflicts [in her
testimony], but even to disbelieve her recantation.‖). We defer to that resolution
and conclude that a rational trier of fact could have found the element of
penetration beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 326, 99
S. Ct. at 2793; Isassi, 330 S.W.3d at 638. Accordingly, we overrule Patterson‘s
first point.
C. Count Five—Improper Photography
In his sixth point, Patterson argues that the evidence at trial was
insufficient to prove improper photography.
1. Evidence at Trial
Jasmine testified that she believed pictures had been taken of her while
she slept one night because she awoke to flashes. She later found on
Patterson‘s computer many nude photographs of herself, four of which the trial
court admitted as State‘s exhibits two through five and the State published to the
jury. Jasmine testified that she does not like being photographed and that she
did not consent to have nude photographs of her taken. She believed that
Patterson took the photographs because nobody else had access to their master
bathroom or bedroom where the photographs were taken and because she found
the photographs on Patterson‘s computer, to which nobody else had access.
She also stated that she believed she was the individual depicted in the
25
photographs because she recognized her body, the clothes next to her, and her
bed, but she admitted on cross-examination that the individual could be anybody.
2. Analysis
In assessing the sufficiency of the evidence of improper photography, we
consider whether any rational trier of fact could have found the essential
elements of this offense—specifically, the alleged actor, the prohibited conduct,
the victim, the requisite intent, and the lack of consent—beyond a reasonable
doubt. See Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b),
2003 Tex. Gen. Laws 1771, 1771 (amended 2007); Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
Jasmine‘s testimony that she believed that Patterson was the one who
took the nude photographs because nobody else had access to their bedroom,
their bathroom, or Patterson‘s computer supports the jury‘s finding that Patterson
was the actor who engaged in the prohibited conduct of taking photographs. See
Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec. 21.15(b), 2003 Tex.
Gen. Laws 1771, 1771 (amended 2007); Cooper v. State, 326 S.W.3d 757, 762–
63 (Tex. App.—Texarkana 2011, pet. granted) (concluding that the evidence was
insufficient to prove that appellant recorded the videos because there was
evidence that, rather than appellant having sole possession of the location from
which the videos were taken, several other people had access to the location
over a period of time).
26
Moreover, her testimony that she never gave Patterson permission to take
those photographs because she does not like being photographed and that he
took them while she was asleep supports the jury‘s finding of the ―without
consent‖ element. See Act of June 20, 2003, 78th Leg., R.S., ch. 500, § 1, sec.
21.15(b), 2003 Tex. Gen. Laws 1771, 1771 (amended 2007). Further, the
content of the photographs supports the reasonable inference that Patterson took
the photographs with the intent to arouse or gratify his or another person‘s sexual
desires because the depicted individual was naked. See id. Additionally,
Jasmine‘s testimony that she was the woman depicted in the photographs
supports the jury‘s finding of this final element of improper photography. While
she also conceded on cross-examination that she supposed the person could be
anybody, the jurors are the sole judge of the weight and credibility of the
evidence, see Brown, 270 S.W.3d at 568, and we may not re-evaluate this and
substitute our judgment for theirs. See Williams, 235 S.W.3d at 750. Instead, we
presume that the jurors resolved this conflicting testimony in favor of the verdict,
and we defer to their resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Isassi, 330 S.W.3d at 638.
Therefore, viewing the evidence in the light most favorable to the verdict,
we conclude that a rational jury could have found the above elements of
improper photography beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. Accordingly, we overrule
Patterson‘s sixth point.
27
VII. Conclusion
Having overruled each of Patterson‘s points, we affirm the trial court‘s
judgments.
PER CURIAM
PANEL: MCCOY, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 19, 2012
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