Tommy Doyle Chambliss v. the State of Texas ( 2023 )

Opinion filed March 9, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00046-CR
__________
TOMMY DOYLE CHAMBLISS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause Nos. 13039, 13354, 13355, & 13356
MEMORANDUM OPINION
In a single trial, the jury convicted Tommy Doyle Chambliss on four charges
of indecency with a child by exposure. See TEX. PENAL CODE ANN. § 21.11(a)(2)(B)
(West 2019). The indictments alleged that Appellant committed the same act on
different dates—that with the intent to arouse or gratify his sexual desire, he
intentionally or knowingly caused “PGG,” a child younger than seventeen years of
age, to expose her genitals. The indictments alleged the following dates:
trial court cause no. 13039 – November 13, 2019;
trial court cause no. 13354 – January 1, 2019;
trial court cause no. 13355 – January 1, 2018; and
trial court cause no. 13356 – September 1, 2018.
The grand jury returned the indictment in trial court cause no. 13039 on
December 17, 2019. The grand jury returned the indictments in trial court cause
nos. 13354, 13355, and 13356 on August 18, 2020.
In both trial court cause nos. 13039 and 13354, the jury assessed Appellant’s
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of five years and a fine of $5,000. The trial court ordered
that Appellant’s sentences for these two cause numbers run consecutively, with
Appellant’s sentence in cause no. 13354 beginning when Appellant has completed
his sentence, or has been released on parole, in trial court cause no. 13039.
In both trial court cause nos. 13355 and 13356, the jury assessed Appellant’s
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of two years and a fine of $5,000. The trial court ordered
that the sentence in trial court cause no. 13355 runs concurrently with the sentence
in trial court cause no. 13356 and that they begin when Appellant has either
completed the sentences or been released on parole in trial court cause nos. 13039
and 13354. However, the trial court also suspended the sentences of confinement in
trial court cause nos. 13355 and 13356 and placed Appellant on community
supervision for a term of five years.
Appellant filed notices of appeal in trial court causes nos. 13039, 13354,
13355, and 13356, and those cases were docketed as separate appeals in this court.
We subsequently granted Appellant’s motion to consolidate the four appeals into a
single cause number: No. 11-21-00046-CR. Appellant challenges his convictions in
five issues. We affirm in part and reverse and render in part.
2
Background Facts
Appellant was a teacher at the Blackwell Consolidated Independent School
District. He taught physical education and computers to elementary students. He
also drove a school bus for the school district. At the time of trial, PGG was a nine-
year-old third grader at Blackwell CISD. Appellant was her teacher for physical
education and computers. PGG was eight years old in December 2019, when
officers interviewed Appellant based on reports they had received.
In her trial testimony, PGG did not testify that she exposed her genitals to
Appellant. When asked at trial if Appellant had ever made her feel uncomfortable,
PGG described a single incident where Appellant took her out of a game of
dodgeball. Also, during her first interview at the West Texas Child Advocacy
Center, PGG did not make an outcry of exposure. Furthermore, PGG did not make
an outcry during an examination performed by a forensic nurse examiner. However,
PGG made an outcry during a second interview at the child advocacy center after
officers interviewed Appellant. The second interview occurred approximately
fifteen months prior to trial.
Brian Davis, an investigator with the Nolan County Sheriff’s Department, and
DPS Special Agent Anthony Bennett conducted a three-hour recorded interview of
Appellant in December 2019, the entirety of which was shown to the jury. During
the interview, Appellant described four incidents wherein PGG exposed either an
injury or birthmark, either on or near her genitals, to him. April Songer, the forensic
nurse examiner that examined PGG, testified that PGG has a dime-size birthmark on
her right, inner thigh that is two inches from her anogenital area/labia majora.
In his recorded interview, Appellant described the four instances as follows:
• The first incident, occurring “about a year ago,” involved PGG showing
Appellant an “injury” that kept her from being able to run in P.E. She
asked Appellant if he wanted to see the injury, to which he replied
“sure,” at which time she pulled down the front of her pants and
3
“exposed herself” to Appellant. Appellant later clarified during the
interview that it was a scratch on one side of PGG’s vaginal area and
that “[he] saw enough of it to know what [he] was looking at.”
• The second time was a couple of weeks later, when PGG wanted to
show him that she still had “that hurt place” and pulled her shorts up to
show him. Appellant stated that he observed that the place had healed
and scarred over.
• The third time was within a month of the interview, when PGG
repeatedly asked Appellant to show her “place” to him, to which he
agreed, and PGG then pulled her pants down to show him.
• The fourth time was similar to the third time, with PGG asking to show
Appellant her “place,” and Appellant saying “okay.” Appellant stated
that this fourth occasion was like the others, in that he saw half of
PGG’s vaginal area.
In sequential order, the first incident would be the subject of trial court cause
no. 13355; the second incident would be the subject of trial court cause no. 13356;
the third incident would be the subject of trial court cause no. 13354; and the fourth
incident would be the subject of trial court cause no. 13039.
In his recorded interview, Appellant stated that on each occasion, PGG
exposed the lip of her vaginal area on one side and that he saw a portion of PGG’s
skin “past the crease mark” of her thigh. He stated that her underwear was
“sideways” and that she did not “fully expose” herself, but that you could “kinda see
the V part of her leg.” Appellant estimated that PGG’s birthmark is about an inch
down her leg. When asked about the length of time that PGG “exposed herself” to
Appellant, he estimated the time to be never more than one to five seconds. When
asked if PGG showed him underwear or skin, Appellant stated, “Oh, it was skin,”
indicating that it was in the vaginal area and that he saw one side of her vaginal area.
He further indicated that when the first incident occurred, the injury that PGG
showed him was on her vaginal area. On three occasions, PGG pulled her pants
down, and on the other occasion, PGG pulled a leg of her shorts up. And as indicated
4
above, Appellant said that on the last two occasions, PGG asked him if she could
show her place to him, to which he agreed. Appellant stated in the interview that he
did not report any of these four instances to his superiors at the school.
These four occurrences were not the only matters involving PGG that
Appellant addressed in the recorded interview. PGG also rode the school bus that
Appellant drove. He stated that PGG pulled down her pants and exposed her “frontal
parts” to his grandson who also rode the bus. 1 The bus incident occurred prior to the
four instances described above. Appellant immediately reported this bus incident to
his supervisor at the school, who instructed Appellant to tell PGG’s parents about
the incident. Appellant told PGG’s parents about the bus incident when he dropped
off PGG from the bus.
At the conclusion of the interview, Appellant wrote a letter that stated as
follows:
I have always tried to be a good person and will continue to improve
myself. I have seen things that I did not originally think I was going to
see. I have taken steps to try to protect myself from being in that
position. I am extremely sorry that I have allowed [PGG] to expose
herself to me on multiple occasions and wish that I had properly reported
it in the first instance. My concern is that she can overcome anything
through counsel [sic] that I have done to effect [sic] her life. Likewise I
have ask [sic] my Buffalo Gap church to pray for me and the situation,
and would hope that I could be afforded counseling through this also.
For all of my trustees I sincerely apologize for putting you in a position
to have to go through any of this and would hope you find it in your
heart to forgive and pray for me. I sincerely hope I am afforded to
continue to help support my family and others in any way possible. I
want to thank Brian and Anthony for hearing my side of all of the details.
I just ask that anyone who reads this will always pray for me and that I
am never in this position again. For the parents I am truly sorry I did
1
E.J.W., a thirteen-year-old eighth grader, gave a different description of the bus incident. She
testified that she observed the incident from the back of the bus and that it appeared to her that PGG pulled
down her pants exposing herself to Appellant rather than Appellant’s grandson.
5
not immediately tell you what [PPG] had done and would ask for
forgiveness and only wish the best for you and your kid.
Sincerely, Tommy Chambliss
P.S. Also I would ask Mr. Gott to allow me to retire as I think it is best
that I not go back to these kids and find a different career.
After Appellant gave the recorded interview, PGG was reinterviewed at the
child advocacy center by Jennifer Nichols-Cunningham. Nichols-Cunningham
testified that, during the second interview, PGG told her that on multiple occasions,
Appellant asked PGG if she had a hurt place or a birthmark and if he could see it.
PGG told Nichols-Cunningham that the place was a birthmark on her thigh and that
she showed it to Appellant multiple times.
Appellant testified during the guilt/innocence phase. On direct examination,
Appellant denied ever looking at PGG or any kid “in a sexual way” and testified that
he had “never been sexually gratified or sexually aroused by any kid, ever.”
Appellant’s trial counsel asked Appellant about a portion of his recorded interview,
including reading from a transcription of the interview to Appellant and asking him
about his interview responses. This questioning focused on a response that
Appellant gave at the end of the recorded interview about why he asked to see girls’
panties. During the interview, Appellant agreed with Agent Bennett that he asked
to look at girls’ panties for his gratification, rather than for the gratification of the
girls. Agent Bennett specifically referenced PGG during this portion of the
interview. At trial, Appellant testified that he was tired at the time that he gave this
response and that he believed that Agent Bennett was talking about something else.
Appellant ended his direct examination by agreeing with his trial counsel that he
“never received any sexual gratification from any of the events depicted in this case.”
During cross-examination, the prosecutor also asked Appellant about portions
of his recorded interview. When asked about the instances he described in the
recorded interview involving PGG, Appellant testified that he did not know “for
6
sure” that PGG showed him her vaginal area. Appellant stated that they were
“almost saw” situations and that he “[i]mmediately . . . closed [his] eyes and looked
away and did not see anything.” Appellant also testified that he felt that Agent
Bennett “led” him during the recorded interview to say that he saw PGG’s vaginal
area. Specifically, the prosecutor asked Appellant about his statement in the
recorded interview that he saw PGG’s vaginal “lips,” to which Appellant replied that
Agent Bennett “led me to trying to say that’s what it was.” He later testified that if
“any part of [PGG’s] vulva area was exposed, I didn’t acknowledge or see that[,]
nor was I ever sexually gratified by that[,] nor was I ever sexually aroused by that.”
Appellant also clarified that in his answer to the gratification question, he thought
Agent Bennett was asking if he thought it looked like to others that his actions were
gratifying to him and that his response was that it was a possibility that others would
view it that way.
Analysis
Sufficiency of the Evidence
In his first four issues, Appellant challenges the sufficiency of the evidence
supporting his four convictions. Appellant’s four issues challenge the sufficiency of
the evidence supporting his four convictions as follows:
Issue One – trial court cause no. 13039;
Issue Two – trial court cause no. 13354;
Issue Three – trial court cause no. 13355; and
Issue Four – trial court cause no. 13356.
Appellant primarily bases his evidentiary challenge on his assertion that the evidence
was insufficient to establish that PGG ever exposed her genitals to anyone other than
her mother and her doctor. Appellant also contends that PGG did not make an outcry
of abuse or provide trial testimony to that effect, that her birthmark is not on her
genitals, and that Appellant’s statements were “incoherent” and not corroborated as
required by the corpus delicti rule.
7
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including pieces of evidence that may have been improperly
admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
role as the sole judge of the witnesses’ credibility and the weight witness testimony
is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict and defer
to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
A jury is prohibited from drawing conclusions based on speculation.
Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (citing Hooper v.
State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)). “Speculation is mere theorizing
or guessing about the possible meaning of the facts and evidence presented.” Id.(quoting Hooper, 214 S.W.3d at 16). Conversely, “an inference is a conclusion
reached by considering other facts and deducing a logical consequence from them.”
Id. “Juries are permitted to draw multiple reasonable inferences from the evidence
8
as long as each inference is supported by the evidence presented at trial[.]” Id. (citing
Hooper, 214 S.W.3d at 15).
We measure sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The hypothetically correct jury charge is one that
“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.A person commits the offense of indecency with a child by exposure if, “with
intent to arouse or gratify the sexual desire of any person,” the person “causes the
child to expose the child’s anus or any part of the child’s genitals.” PENAL
§ 21.11(a)(2)(B). Because the Penal Code does not define the term “genitals,” and
because it has not acquired a special legal or technical meaning, it is to be interpreted
by the jury according to common usage and parlance. Davisonhicks v. State, No.
07-18-00021-CR, 2019 WL 1890898, at *3 (Tex. App.—Amarillo Apr. 26, 2019,
pet. ref’d) (mem. op., not designated for publication); see Green v. State, 476 S.W.3d
440, 445 (Tex. Crim. App. 2015) (citing Kirsch v. State, 357 S.W.3d 645, 652 (Tex.
Crim. App. 2012)).
The gravamen of the offense of indecency with a child by exposure is the
nature of the prohibited conduct, and the allowable unit of prosecution is each
exposure. Loving v. State, 401 S.W.3d 642, 648–49 (Tex. Crim. App. 2013). The
Penal Code also does not define the term “expose.” In Moncada v. State, we
addressed the meaning of “exposure” under Section 21.11(a)(2)(B) for the purpose
of reviewing the sufficiency of the evidence. Moncada v. State, No. 11-18-00236-
CR, 2020 WL 6195176, at *2–3 (Tex. App.—Eastland Oct. 22, 2020, no pet.) (mem.
op., not designated for publication). We noted that, because the term is not defined
9
by statute, we examine it consistently with its generally understood meaning. Id. at
*2. We then cited Balfour v. State for the proposition that “[a]s far as the indecency
with a child by exposure statute is concerned, exposure means: ‘To deprive of
concealment; to disclose or unmask something criminal, shameful, or the like.’” Id.
(quoting Balfour v. State, 993 S.W.2d 765, 769 (Tex. App.—Austin 1999, pet. ref’d),
which quotes Miller v. State, 243 S.W.2d 175, 176 (Tex. Crim. App. 1951)). We
determined that when a defendant causes the exposure of a child’s genitals, “[i]t is
not necessary that anyone see the exposed genitals, it is enough that they were
exposed.” Id. at *3.
Appellant contends that we should “reevaluate” the interpretation we made in
Moncada because it could lead to absurd results.2 We decline to do so in this case
because the facts here would not lead to an absurd result. We based our
determination in Moncada on other cases that examined the meaning of “exposure.”
Id. at *2–3. Furthermore, at least one other court of appeals has interpreted
“exposure” in the same way with respect to indecency with a child when a defendant
is alleged to have caused the child’s exposure. See Mauro v. State, 221 S.W.3d 896,
900–01 (Tex. App.—Beaumont 2007, no pet.) (determining that exposure can occur
without proof of exposure to one’s eyesight).
The Corpus Delicti Rule
In order to determine if Appellant’s recorded interview may be considered in
our review of the sufficiency of the evidence, we must initially address Appellant’s
contention that his interview had to be corroborated under the corpus delicti rule.
The Texas Court of Criminal Appeals recently addressed the corpus delicti rule in
The example given by Appellant of an absurd result would be an adult telling a child to go into a
2
restroom and use it with the door closed—with the adult doing so for the purpose of sexual gratification.
That example materially differs from the facts in this case because Appellant was in the same room with
PGG during each of the four exposures.
10
Shumway v. State, No. PD-0108-20, 2022 WL 301737, at *5 (Tex. Crim. App.
Feb. 2, 2022), cert. denied, 143 S. Ct. 214 (2022).3 As noted in Shumway,
The corpus delicti rule is a judicial rule of evidentiary sufficiency
“affecting cases in which there is an extrajudicial confession.” It
requires that, “[w]hen a conviction is based on a defendant’s
extrajudicial confession, that confession does not constitute legally
sufficient evidence of guilt without corroborating evidence independent
of that confession showing that the essential nature of the offense was
committed.” The corpus delicti rule essentially adds an additional
requirement to our traditional Jackson v. Virginia legal sufficiency
analysis for cases involving extrajudicial confessions.
Under the corpus delicti rule, the corroborating evidence does
not need to independently prove the crime, but must simply make the
occurrence of the crime more probable than it would be without the
evidence. Courts have traditionally applied the corpus delicti rule to
ensure that a person is not convicted “solely on his own false confession
to a crime that never occurred.” The rule has been applied in Texas for
at least one hundred sixty years and originated over three hundred years
ago in England. It first developed in reaction to a slew of cases in which
defendants admitted to the “murder” of missing persons, were
executed, and, naturally, were not around for exoneration when their
“victims” later turned up, much more alive than their self-admitted
“murderers.”
The corpus delicti of a particular crime is simply “the fact that
the crime in question has been committed by someone.” It does not
require proof that the specific defendant committed the criminal act,
just that the crime itself occurred.
2022 WL 301737, at *5 (footnotes omitted). The corpus delicti rule applies to
extrajudicial confessions. 4 Id. at *6. “[A]n in-court ‘judicial’ confession need not
3
The parties did not have the benefit of the opinion in Shumway when this case was briefed.
4
It is somewhat dubious to treat Appellant’s recorded interview as an extrajudicial confession. The
audio of Appellant’s statements, as well as those of the two officers that questioned him, were recorded,
along with the video depicting Appellant during the interview, the entirety of which was played to the jury.
Both Appellant’s trial counsel and the prosecutor questioned Appellant extensively at trial about the
contents of his recorded interview. And in addressing the recorded interview at trial, Appellant testified
that “[i]t’s not [the officer’s] fault that I said anything. I’m accountable for anything that I say.”
11
be corroborated.” Salazar v. State, 86 S.W.3d 640, 645 n.18 (Tex. Crim. App. 2002).
Furthermore, a defendant’s in-court testimony can serve to corroborate his
extrajudicial confession. Id. at 645.
Shumway involved a prosecution for indecency with a child by contact where
the victim was a preverbal seventeen-month-old child. 2022 WL 301737, at *1. The
defendant confessed to his pastor and his wife that he pushed aside the infant’s diaper
and touched her genital region with his hands, mouth, and penis. 5 Id. The court
noted that the corpus delicti of indecency with a child by contact is the occurrence
of a sexual touching of the child with the intent to arouse or gratify the sexual desire
of a person. Id. at *5.
Here, the corpus delicti of indecency with a child by exposure is the exposure
of the child’s genitals to a person with the intent to arouse or gratify the sexual desire
of a person. See PENAL § 21.11(a)(2)(B). Appellant asserts that there was no
evidence outside of his recorded interview that corroborated the commission of the
charged offenses.
In order to assess the sufficiency of the corroborating evidence for the purpose
of the corpus delicti rule, we consider all of the admitted evidence except the
extrajudicial confession, and we view it in the light most favorable to the verdict.
Miranda v. State, 620 S.W.3d 923, 928–29 (Tex. Crim. App. 2021) (citing Fisher v.
State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993)). However, the extrajudicial
confession can be used to help analyze the other available evidence with respect to
the corpus delicti rule. Shumway, 2022 WL 301737, at *6.
Nichols-Cunningham testified as an outcry witness. Outcry witness testimony
is substantive evidence of guilt for the purpose of a sufficiency review, and it is alone
sufficient to support a conviction without corroboration by either the victim or
5
The court in Shumway recognized a “narrow exception” to a strict application of the corpus delicti
rule for instances when the confessed conduct is committed against a child incapable of outcry and the
confessed conduct did not result in any perceptible harm. 2022 WL 301737, at *6.
12
independent evidence. Rodriguez v. State, 819 S.W.2d 871, 873–74 (Tex. Crim.
App. 1991); see Villalon v. State, 791 S.W.2d 130, 132–33 (Tex. Crim. App. 1990).
Nichols-Cunningham testified as follows:
Q. What did [PGG] say [Appellant] would say to her that was
concerning to you?
A. That he would ask -- he asked her if she had a hurt place or
a birthmark and if he could see it at any time.
Q. And how did she say that she responded to that?
A. She said sure.
Q. Okay. Did she then describe doing just that with [Appellant]
on multiple occasions?
A. Yes.
Additionally, Songer testified about the close proximity of PGG’s birthmark to her
genitals.
Finally, we have Appellant’s trial testimony to consider for corroboration
purposes. Appellant testified at trial about the four times that PGG showed him an
injury or birthmark either on her genitals or near the area of her vagina/vulva. With
respect to the first occasion, Appellant testified that PGG told him that “she fell on
the concrete at her house naked and skinned her private area.” He also testified that
PGG “constantly” kept asking to show him “her area.” Appellant stated that the first
two times were to show him the injury and the last two times were to show him her
birthmark. Appellant further testified that on the third occasion, he told PGG “[g]o
ahead” when she asked to show him her birthmark. He also told her on this occasion
that “[t]his will be our secret.” Also, Appellant testified that a video of the fourth
incident was accidently recorded on his phone but that he deleted it prior to his
interview with the detectives.
These pieces of evidence were sufficient to satisfy the corpus delicti rule
because they showed that the “essential nature” of the crime was committed, and
13
they made the occurrence of the crime more probable than it would be without the
evidence. See Shumway, 2022 WL 301737, at *7; Miranda, 620 S.W.3d at 928.
Accordingly, we may consider Appellant’s recorded interview in assessing the
sufficiency of the evidence supporting his convictions.
Exposure of Genitals
“The general requirements for an offense to have been committed are an actus
reus and a mens rea.” Ramirez-Memije v. State, 444 S.W.3d 624, 627–28 (Tex.
Crim. App. 2014). Appellant contends that PGG’s exposure of her genitals was the
actus reus of indecency with a child by exposure. This assertion is technically
incorrect. The actus reus of an offense is the defendant voluntarily engaging in the
act resulting in criminal responsibility. Id. (citing PENAL § 6.01 (West 2021). Thus,
the actus reus of indecency with a child by exposure would be Appellant causing the
exposure. See PENAL § 21.11(a)(2)(B). However, the exposure of PGG’s genitals
was still a required element of the offense of indecency of a child by exposure as
charged. 6
As noted previously, the Penal Code does not define “genitals.” Thus, the
jury was permitted to use the common meaning of the term to assess Appellant’s
guilt. In his recorded interview, Appellant repeatedly stated that PGG exposed her
genitals to him as those terms are commonly understood. He indicated that on the
first occasion, the injury was on PGG’s vaginal area and that she “exposed herself”
to him. He further indicated that the four occasions involved the showing of “skin”
of one side of her vaginal area, rather than underwear, and that it was past the crease
or “V” mark of her leg.
Under our determination in Moncada of the meaning of exposure, Appellant’s
trial testimony that he looked away each time is of no consequence. See Moncada,
6
As a required element of the charged offenses, the exposure of PGG’s genitals was a sine qua non
of the offenses. See Otto v. State, 273 S.W.3d 165, 175 (Tex. Crim. App. 2008) (Cochran, J., dissenting)
(“The term sine qua non literally means ‘without which not.’”).
14
2020 WL 6195176, at *3. PGG exposed her genitals because that portion of her
body was deprived of concealment, disclosed, or unmasked. See id. at *2–3; see
also Balfour, 993 S.W.2d at 769. It was not necessary that Appellant actually saw
the exposed genitals, it is enough that they were exposed. See Moncada, 2020 WL
6195176, at *3. Moreover, the jury was free to disregard Appellant’s self-serving
testimony that he looked away each time.
Many of Appellant’s contentions about the lack of evidence of exposure are
based on inconsistencies in the evidence. For example, PGG did not testify at trial
about any incidents of exposure, and during her first interview with Nichols-
Cunningham, she stated that only her mother and doctor had seen her injury or
birthmark. Conversely, during his recorded interview, Appellant provided details
about the four incidents of exposure, and he addressed the exposure of PGG’s
genitals. Additionally, Appellant’s trial testimony countered the lack of testimony
from PGG about the four incidents. Under the applicable standard of review, we
presume that the jury resolved inconsistencies in the evidence in favor of its verdict,
and we defer to the determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d
at 778. We conclude that the evidence of exposure was sufficient. In reaching this
conclusion, we reject Appellant’s contention that the evidence of exposure was
simply too weak to reach this conclusion.
Actus Reus
Appellant directs little attention on the causative element—that he caused
PGG to expose her genitals to him. See PENAL § 21.11(a)(2)(B). Nichols-
Cunningham’s testimony addressed the actus reus element because she testified
about multiple instances of Appellant causing PGG to expose herself to him.
However, she did not provide any testimony about any particular incidents. Nor did
PGG. Appellant also addressed the actus reus of the offenses in a collective sense
15
when he stated in his apology letter, “I am extremely sorry that I have allowed [PGG]
to expose herself to me on multiple occasions.”
The only details of the specific occurrences came from Appellant—both in his
trial testimony and the recorded interview. Contrary to Nichols-Cunningham’s
testimony, Appellant testified that he did not ask PGG to show him her injury or
birthmark. Instead, Appellant testified that PGG “constantly” asked to show him
her injury or birthmark.
Appellant testified that he was shocked on the first occasion, because he
thought PGG was going to show him a skinned knee. Appellant testified that the
second occasion happened “very quick,” to the point that PGG exposed herself
before he was able to tell her anything in response to her inquiry about wanting to
show it to him. Appellant testified that on the third occasion, PGG had gotten to the
point of being annoying in asking to show him, so he said, “Go ahead.” Appellant
described the fourth occasion to be like the third occasion, with PGG asking
Appellant to show her place to him, to which Appellant agreed.
We first address the third and fourth occasions because Appellant’s
descriptions of those incidents differ in a material respect. These subsequent
occasions are the subject of trial court cause nos. 13039 and 13354. Unlike the first
two occasions, where Appellant stated that he was either surprised by what PGG
showed him or did not have time to react, Appellant admitted that he knew what area
of her body that PGG was going to show him. Appellant essentially asserted that
his young student wore him down by being so persistent to the point that he
capitulated to her requests to show him a place very near her genitals that, by his
admissions in his recorded interview, resulted in the exposure of her genitals. Even
if one accepts Appellant’s version of the third and fourth incidents, the evidence is
sufficient to support the actus reus for the third and fourth offenses because
16
Appellant caused these exposures by agreeing to PGG’s purported requests to show
him a place on her body that, in turn, caused the exposure of her genitals.
As noted previously, the only details of the specific incidents are derived from
Appellant’s interview with law enforcement and his trial testimony. Unlike with the
subsequent instances, on the first occurrence, the subject of trial court cause
no. 13355, Appellant stated that he did not know what PGG was going to show him
when she asked to show him her injury. As such, there is no evidence to support
Appellant’s conviction for the first instance because there is no evidence that he
caused the exposure with the requisite intent. Consequently, the State did not prove
Appellant’s guilt beyond a reasonable doubt. To find otherwise would constitute the
drawing of a conclusion based upon speculation about the details of the first
instance—a conclusion that is contrary to the only evidence that was presented at
trial. See Anderson, 416 S.W.3d at 888; Hooper, 214 S.W.3d at 15–16.
Accordingly, we sustain Appellant’s third issue challenging his conviction in trial
court cause no. 13355.
The second occurrence, the subject of trial court cause no. 13356, is more
difficult to assess because Appellant had knowledge of what PGG was going to show
him as a result of the first instance. However, the only evidence about this occasion
is Appellant’s statement that he did not have time to respond before the exposure
occurred. As such, evidence that he caused the exposure on the second occasion is
not present. Therefore, and similar to the offense charged in trial court cause
no. 13355, the State did not prove Appellant’s guilt beyond a reasonable doubt.
Accordingly, we sustain Appellant’s fourth issue challenging his conviction in trial
court cause no. 13356.
Mens Rea
With respect to evidence of the requisite mental state, direct evidence of what
an accused intended at the time he committed the offense is rare. See Moore v. State,
17
969 S.W.2d 4, 10 (Tex. Crim. App. 1998) (“Mental states are almost always inferred
from acts and words.”). With respect to a defendant’s intent to arouse or gratify his
sexual desire, his intent can be inferred from the act itself. McKenzie v. State, 617
S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981).
The record is replete with Appellant’s denials that he ever looked at a child,
including PGG, in “a sexual way” and with his statements that he had “never been
sexually gratified or sexually aroused by any kid, ever.” Conversely, the officers
conducting Appellant’s recorded interview inquired into Appellant’s fascination
with girls’ and women’s panties. Appellant stated that he was fascinated by the
design of panties, but not in a sexual way. But Appellant also indicated that he was
possibly fascinated by the body areas that are covered by panties. Additionally, we
have already addressed Appellant’s response during the recorded interview that
seeing panties would be for his gratification.
There are additional matters that bear on Appellant’s mens rea during the four
exposures by PGG. Even though he was PGG’s elementary school teacher,
Appellant indicated in his recorded interview and his apology letter that he did not
report these four exposures to his supervisors at the school. This nondisclosure
differs from the prior incident on the bus when Appellant immediately reported the
incident. Additionally, Appellant also told PGG after the third occasion that “this
will be our secret.” Finally, the fourth occasion was recorded on Appellant’s phone,
but he deleted the recording. These efforts to conceal the occurrences, coupled with
his fascination with panties, is evidence supporting an inference that he possessed
an intent to arouse or gratify his sexual desire when he caused PGG’s exposure. As
such, the evidence was sufficient for the jury to determine beyond a reasonable doubt
that Appellant possessed the requisite intent on the third and fourth occasions. We
overrule Appellant’s first and second issues.
18
Written Report of CPS Investigator
In his fifth issue, Appellant challenges the admission of a written report
prepared by a CPS investigator, Tammy Allred, wherein she found “reason to
believe” that Appellant was responsible for sexual abuse occurring with PGG, along
with other girls. Allred described the document as a “closure letter” sent to the
alleged perpetrator as well as others affected by the CPS investigation. The closure
letter included the following definition: “‘Reason to Believe’ means that a
preponderance of the evidence supports that the alleged abuse or neglect did occurr.”
The prosecutor sought to admit the letter after Allred had previously testified that,
based upon her investigation, she had concerns that Appellant’s conduct had caused
harm to the mental, emotional, and physical welfare of the children.
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
We also uphold a trial court’s evidentiary ruling if it is correct on any theory of law
that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 125–26 (Tex.
Crim. App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland
2015, no pet.).
At trial, Appellant’s trial counsel objected to the admission of the closure
letter on the basis that “it relates to a civil investigation. It is not part of the criminal
case and could tend to confuse the jury as to the relevant issues concerning the
criminal case, and that’s my objection.” In making the objection, Appellant’s trial
counsel noted that his objection was the same as his objection that he made to
Allred’s oral testimony wherein he objected to Allred’s finding of “reason to
believe” on the bases that it was “made by a special agency under different standards
19
of the law,” “is irrelevant in this proceeding,” and “could confuse the issues.” The
trial court overruled Appellant’s objections.
On appeal, Appellant presents several arguments for the exclusion of the
closure letter, some of which were not preserved for appellate review. Appellant
contends that the closure letter was inadmissible hearsay, that its probative value
was substantially outweighed by its confusion of the issues in violation of Rule 403
of the Texas Rules of Evidence, and that it contains “propensity and character
conformity evidence” in violation of Rule 404(b). See TEX. R. EVID. 403, 404(b).
Because Appellant did not object at trial on the grounds that the closure letter
constituted hearsay or that it violated Rule 404(b), those arguments are not preserved
for appellate review.
As the losing party, Appellant was required to alert the trial court to all of the
grounds upon which he relies to assert that the trial court should have excluded the
closure letter. See Klein v. State, 273 S.W.3d 297, 312 (Tex. Crim. App. 2008);
Gutierrez v. State, 630 S.W.3d 270, 281 (Tex. App.—Eastland 2020, pet. ref’d). As
noted by the Court of Criminal Appeals:
[T]he party complaining on appeal (whether it be the State or the
defendant) about a trial court’s admission, exclusion, or suppression of
evidence must, at the earliest opportunity, have done everything
necessary to bring to the judge’s attention the evidence rule or statute
in question and its precise and proper application to the evidence in
question. The issue . . . is not . . . whether the trial court’s ruling is
legally correct in every sense, but whether the complaining party on
appeal brought to the trial court’s attention the very complaint that party
is now making on appeal.
Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (internal quotation
marks omitted) (footnote omitted); see Golliday v. State, 560 S.W.3d 664, 669 (Tex.
Crim. App. 2018) (quoting Reyna); Resendez v. State, 306 S.W.3d 308, 313 (Tex.
Crim. App. 2009) (“[I]n order to preserve a complaint for appeal, the complaining
20
party must have done everything necessary to bring the relevant evidentiary rule and
its precise and proper application to the trial court’s attention.”) (citing Reyna).
Appellant objected at trial to Allred’s findings on the bases that they were
irrelevant and that they could confuse the jury. Rule 401 provides that evidence is
“relevant” if “it has any tendency to make a fact more or less probable than it would
be without the evidence” and if “the fact is of consequence in determining the
action.” TEX. R. EVID. 401. Relevant evidence is generally admissible, whereas
“[i]rrelevant evidence is not admissible.” TEX. R. EVID. 402.
Under Rule 403, relevant evidence may be excluded if its “probative value is
substantially outweighed by a danger of . . . confusing the issues [or] misleading the
jury.” TEX. R. EVID. 403. Appellant did not cite Rule 403 to the trial court as a basis
for excluding Allred’s “reason to believe” finding. However, he did state that the
evidence would confuse the jury. “Confusion of the issues” refers to a tendency to
confuse or distract the jury from the main issues in the case, and “misleading the
jury” refers to a tendency of an item of evidence to be given undue weight by the
jury. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006) (citing S.
Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence § 403.2 at 164–
65 (3rd ed. 2002)).
“Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence is more probative than prejudicial.” Hayes v. State, 85 S.W.3d
809, 815 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810 S.W.2d 372, 376
(Tex. Crim. App. 1990)); see Martin v. State, 570 S.W.3d 426, 437 (Tex. App.—
Eastland 2019, pet. ref’d). When we review a trial court’s determination under Rule
403, we reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery, 810 S.W.2d at 392).
21
An analysis under Rule 403 includes, but is not limited to, the following
factors: (1) the probative value of the evidence; (2) the potential to impress the jury
in some irrational, yet indelible, way; (3) the time needed to develop the evidence;
and (4) the proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310,
324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.
App. 2006); Martin, 570 S.W.3d at 437. Rule 403, however, does not require that
the balancing test be performed on the record. Martin, 570 S.W.3d at 437 (citing
Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet. ref’d)). “By
its express terms, evidence is not excludable under Rule 403 for merely being
prejudicial—the rule applies to evidence that is unfairly prejudicial.” Id. “Evidence
is unfairly prejudicial when it has an undue tendency to suggest an improper basis
for reaching a decision.” Id. (citing Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim.
App. 2000); Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet.
ref’d)).
As recently noted by the Fort Worth Court of Appeals, “[c]aselaw supports
the proposition that a CPS worker can testify that CPS found ‘reason to believe’ [that
abuse occurred].” Taylor v. State, No. 02-16-00299-CR, 2017 WL 5894923, at *3
(Tex. App.—Fort Worth Nov. 30, 2017, pet. ref’d) (mem. op., not designated for
publication)7; see Johnson v. State, 970 S.W.2d 716, 720 (Tex. App.—Beaumont
1998, no pet.) (stating that it was not error to admit testimony of CPS investigator
that CPS found reason to believe); see also Wagner v. State, No. 14-07-00906-CR,
2009 WL 838187, at *8 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, pet. ref’d)
(mem. op., not designated for publication) (noting that “reason to believe” evidence
could assist the trier of fact); Bowers v. State, No. 2-02-250-CR, 2003
7
As noted in Taylor, “reason to believe” is one of five possible dispositions that CPS may make
after investigating allegations of child abuse or neglect. 2017 WL 5894923, at *3 n.3.
22
WL 22026428, at *6 (Tex. App.—Fort Worth Aug. 29, 2003, pet. ref’d) (stating not
error to admit testimony of CPS investigator that CPS found reason to believe).
We have also reached the same conclusion on at least two occasions. See
Castro v. State, No. 11-14-00095-CR, 2017 WL 922505, at *4–5 (Tex. App.—
Eastland Feb. 28, 2017, no pet.) (mem. op., not designated for publication);
Harrell v. State, No. 11-03-00092-CR, 2005 WL 1405729, at *3 (Tex. App.—
Eastland, June 16, 2005, no pet.) (not designated for publication). The defendant in
Castro objected to the admission of a CPS finding of “reason to believe” on
essentially the same basis at issue here—that the CPS investigator used a lower,
different standard of proof and as a result, the jury would be confused and unable to
consider the evidence in the proper context. 2017 WL 922505, at *4. We
determined in Castro that the trial court did not abuse its discretion by overruling
the defendant’s objection on these grounds, relying on the precedent permitting its
admission. Id. at 5.
We reach the same conclusion in this case. We are primarily guided by the
fact that the different standard of proof utilized by the CPS investigator could be
understood by a rational jury. In this regard, the prosecutor established that Allred
used a different standard. Additionally, Appellant’s trial counsel extensively
questioned Allred about the different standard during cross-examination. Allred
answered in the affirmative to counsel’s question that her findings would be
irrelevant in a criminal case. Accordingly, the trial court did not abuse its discretion
by overruling Appellant’s objection to the closure letter.
Even if the trial court had erred in admitting the closure letter, the error was
harmless. Generally, an error in the admission of evidence over a Rule 403 objection
is nonconstitutional. Perez v. State, 562 S.W.3d 676, 691 (Tex. App.—Ft. Worth
2018, pet. ref’d). Nonconstitutional error is subject to a harmless error analysis
under Rule 44.2(b) of the Texas Rules of Appellate Procedure, which examines
23
whether the defendant’s substantial rights were affected. Davison v. State, 405
S.W.3d 682, 688 (Tex. Crim. App. 2013). A substantial right is affected if the error
had a substantial and injurious effect or influence in determining the jury’s verdict.
Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). One’s substantial
rights are not affected by the erroneous admission of evidence if, after examining
the record as a whole, we have fair assurance that the error did not influence the jury
or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002).
The admission of the closure letter did not affect Appellant’s substantial rights
because of the reason that we have already stated—both the attorneys and Allred
explained that she used a different standard for her finding of “reason to believe.”
This explanation ameliorated the harm, if any, of misleading the jury by its
admission. Accordingly, we overrule Appellant’s fifth issue.
This Court’s Ruling
We reverse the judgments of conviction in trial court cause nos. 13355 and
13356, and we render a judgment of acquittal in both of those causes. We affirm the
judgments in trial court cause nos. 13039 and 13354.
JOHN M. BAILEY
CHIEF JUSTICE
March 9, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
24