Tishawn Jahmai Helton v. State ( 2020 )

Affirmed and Opinion Filed December 29, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00065-CR
TISHAWN JAHMAI HELTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F17-76320-I
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Pedersen, III
A jury found appellant Tishawn Jahmai Helton guilty of aggravated sexual
assault of a child under fourteen years of age. The trial court assessed his
punishment, when enhanced by a prior felony conviction, at forty-five years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice. In a single issue, appellant contends the evidence is insufficient to support
his conviction. In a cross-point, the State asks us to modify the judgment to correct
a number of clerical errors. As modified, we affirm the trial court’s judgment.
Background
The mother of ten-year-old T.S. brought her daughter to Children’s Medical
Center because the child was experiencing vaginal pain and bleeding. T.S. told her
mother that she had hurt herself in a bathroom fall that caused her to do “the splits.”
Hospital personnel found that T.S. had experienced a three-centimeter tear from her
vaginal area to her anus, and it was surgically repaired. However, while T.S. was
still sedated following the surgery, Suzanne Dakil, M.D., a specialist in child abuse
pediatrics, was asked to examine T.S. Dr. Dakil observed the tear; she also conducted
an internal examination and observed a laceration to T.S.’s vaginal wall. She
concluded that the child’s injuries were consistent with a penetrating injury, i.e.,
“something that is actually penetrating into the genital structures” rather than the
type of injury reported by T.S.’s mother. On a follow-up visit, Dr. Dakil observed a
“complete transection of [T.S.’s] hymen.” At this appointment, T.S. also tested
positive for genital gonorrhea, which could have been contracted only by vaginal
contact.
T.S. was seen three times by Carrie Paschall, a forensic interviewer at the
Dallas Children’s Advocacy Center. The first time, T.S. repeated the “splits”
explanation for her injury; when asked about appellant, she “shut down.” After this
interview, T.S. and her siblings were placed in foster care. During the second visit
T.S. cried, sat under a chair, and refused to answer any questions.
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Soon after, T.S. and her sister moved in with their biological father and step-
mother, and T.S. gave her step-mother a different explanation of her injury. T.S. said
that she had been left alone with appellant that day. He made her undress, got on top
of her, and forced his penis inside her. She began bleeding, and appellant had her get
into the bathtub. When her mother returned, the bleeding had not stopped. Despite a
second turn in the tub with cold water, T.S. continued to bleed, and her mother took
her to the emergency room at Children’s.
Following this outcry, T.S.’s step-mother brought her back to the advocacy
center. T.S. was initially reluctant to talk about the incident, but she wrote down
what had happened with appellant. She was “very, very emotionally distressed,” but
was eventually able to talk about the incident and give more details to Ms. Paschall.
T.S. testified to details of the incident at trial; her testimony was consistent with the
outcry and third forensic interview.
Detective Corey Foreman, of the Dallas Police Department’s child abuse unit,
observed the third interview and concluded that probable cause existed for an arrest
warrant. Appellant was ultimately arrested and charged with aggravated sexual
abuse of a child under fourteen. He was tried, found guilty, and sentenced to forty-
five years in prison. This appeal followed.
Sufficiency of the Evidence
Appellant contends that the evidence was insufficient to support the jury’s
verdict that he was the person who assaulted T.S. He testified that T.S. was injured
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while he was at work, and he denied assaulting her. He contends further that the
evidence of T.S.’s injury “proved that if anything, [he] contacted her anus—not her
sexual organ” as the indictment charged.
To evaluate the sufficiency of the evidence, we consider 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.
Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). Our duty is to
ensure that the evidence presented supports the jury’s verdict and that the State has
presented a legally sufficient case of the offense charged. Montgomery v. State, 369
S.W.3d 188, 192 (Tex. Crim. App. 2012).
The indictment charged that appellant:
on or about the 16th day of July, 2017 in the County of Dallas, State of
Texas, did unlawfully then and there intentionally and knowingly cause
the contact of the female sexual organ of [T.S.], a child, who was not
then the spouse of the defendant, by an object, to-wit: the sexual organ
of defendant, and at the time of the offense, the child was younger than
fourteen years of age.
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B) (person commits
offense if, regardless of whether he knows age of child at time of offense, he
intentionally or knowingly causes sexual organ of child to contact or penetrate sexual
organ of another person, including actor, and victim is younger than fourteen years
of age).
Appellant testified that he never assaulted T.S. and that he was not present
with her when she was injured. But T.S. testified that appellant was her assailant in
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the hotel where the family was staying. In addition, T.S.’s step-mother testified to
her outcry, and Paschall testified to her forensic interviews. The issue was
fundamentally one of credibility. The jury is the sole judge of the credibility and
weight to attach to witness testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). The verdict establishes that the jurors believed T.S. rather than
appellant. And the testimony of a child victim is sufficient by itself to support a
conviction for sexual assault of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07(a).
We may not substitute our judgment for that of the jurors. Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999).
Appellant also argues that even if he committed offensive conduct, it was not
the conduct charged by the indictment. In this instance appellant relies upon certain
language in Detective Foreman’s arrest warrant affidavit, which stated that appellant
“told [T.S.] to take off her pants. When she didn’t, [appellant] pulled her pants and
panties down to her ankles and forced his pee (penis) into her butt (anus).” 1
However, in the same affidavit, the detective states that T.S.’s mother took her to the
emergency room “because she was bleeding extensively from her vagina.” The
affidavit goes on to include the medical findings that T.S. “was found to have a
1
Here, we are quoting from the affidavit. The detective did not indicate that this was a direct quote
from T.S.
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penetrating vaginal injury that required surgical repair” and that her “vagina had a
3cm tear.” Dr. Dakil also testified at length to the vaginal nature of the injury.
Moreover, at trial T.S. testified that, although appellant tried to put his “middle
part” in her “butt,” he did not, because she kept moving. He was able to penetrate
“another part.” T.S. didn’t know what that “part” was called, but that was where she
was bleeding. We will not penalize a child victim for lacking an adult’s vocabulary:
we conclude that T.S. was identifying her sexual organ.
Considering the evidence in the light most favorable to the verdict, we
conclude that a rational juror could have found beyond a reasonable doubt that
appellant committed aggravated sexual assault of T.S. in the manner the indictment
alleged, i.e., by causing her sexual organ to contact his sexual organ. See Acosta,
429 S.W.3d at 624–25. On this question as well, T.S.’s testimony is sufficient to
support appellant’s conviction. See CRIM. PROC. art. 38.07(a).
We overrule appellant’s single issue.
Modifying the Judgment
In its cross-point, the State asks us to modify the judgment to correct multiple
inaccuracies, including the name of the State’s lead attorney at trial, the penal code
section under which appellant was indicted, and the presence of an enhancement
plea and ruling. Appellate courts have the power to reform whatever the trial court
could have corrected by a judgment nunc pro tunc, so long as the evidence necessary
to correct the judgment appears in the record. See Bigley v. State, 865 S.W.2d 26,
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27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet. ref’d). We grant the State’s cross-point and modify each of these
three errors:
 The judgment states that Bryan Mitchell represented the State at trial, but the
record reflects that the lead attorney for the State was James Worley. We
modify the judgment to show the “Attorney for State” was James Worley.
 The judgment states that appellant was indicted and convicted for an offense
under section 21.02 of the penal code, but aggravated sexual assault of a child
falls under section 22.021 of that code. We modify the judgment to show that
the “Statute for Offense” was 22.021 Penal Code.
 The judgment states N/A in all sections referring to enhancement allegations.
However, the record establishes that appellant made a plea of true to one
enhancement allegation and the trial court found that allegation true. We
modify the judgment to show that the “Plea to 1 st Enhancement Paragraph”
was true, and the “Finding on 1st Enhancement Paragraph” was true.
Conclusion
As modified, we affirm the trial court’s judgment.
190065f.u05 /Bill Pedersen, III//
BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TISHAWN JAHMAI HELTON, On Appeal from the Criminal District
Appellant Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1776320-I.
No. 05-19-00065-CR V. Opinion delivered by Justice
Pedersen, III. Justices Myers and
THE STATE OF TEXAS, Appellee Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
 The “Attorney for State” was James Worley.
 The “Statute for Offense” was 22.021 Penal Code.
 The “Plea to 1st Enhancement Paragraph” was true, and the “Finding on 1st
Enhancement Paragraph” was true.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 29th day of December, 2020.
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