Foster v. State

OPINION

Opinion by

Justice Francis

A jury convicted Devante Jerome Foster of aggravated sexual assault of six-year-old J.S., and the trial court assessed punishment at life in prison. In five issues, appellant contends venue was not proven, he is entitled to a new punishment hearing because the punishment record has been lost or destroyed, the trial court erred by admitting certain evidence, and his life sentence is grossly disproportionate to the offense and violates the objectives of the penal code. After reviewing the record, we overrule all issues. In a cross-issue, the State requests that we modify the judgment to correct several errors. A judgment has been filed correcting the errors, which moots the State’s cross-issue. We affirm the trial court’s judgment.

Tiffany S. is the mother of J.S. She met appellant through her brother, and appellant became a close friend of the family. In December 2007, Tiffany gave birth to J.S. J.S.’s father was not around, and appellant helped her with “[ajnything possible that we needed.” Tiffany appreciated appellant’s help because she was a single mother to J.S. and two daughters. Appellant bought J.S. toys and clothing, brought him his favorite foods to eat, and spent time with him. By the time J.S. was five years old, he was spending the night with appellant on weekends and had asked to call appellant “Dad.” At the time, appellant lived in an apartment in Grand Prairie with his mother and brother. Appellant had his own bedroom, and when J.S. spent the night with him, the two shared a bed.

At first, J.S. went to appellant’s apartment by himself. But, at some point, J.S. wanted someone to go with him on his overnight visits. J.S.’s two sisters went once, and some of his male cousins went with him at other times. On one occasion in the summer of 2014, J.S.’s ten-year-old uncle, J.J., went with him. Several weeks later, J.J. told his mother, Falicia, (J.S.’s maternal grandmother) that appellant made him “suck his private part” and “had sex” with him. That same day, J.S. told Falicia that his “dad” had done “the same thing” to him. Specifically, J.S. told his grandmother that he “would suck his dad’s middle part,” his dad “would in return suck his,” and his dad “would have sex with him in the behind.”

Falicia immediately called J.S.’s mother and was in the room when J.S. told his mother what happened. Later, Falicia asked the other children if anything had happened to them, and two of her grandsons reported appellant “made some sexual gestures” toward them. According to Falicia, one grandson said he was in bed and appellant came up behind him and “went around the rim of his underwear,” The child' got out-of bed and went to the living room. A second grandson said appellant “rubbed him on his thigh and his middle part.”

Tiffany and Falicia went to the Grand Prairie Police Department the next day and reported what happened. Detective Timothy Paulson was assigned the case. He took statements from both women, observed the interviews of J.S. and J.J. at the advocacy center, and completed referrals for the boys to undergo physical examinations at Children’s Medical Center. He then went to what he believed was appellant’s address and met with a lady there who knew appellant. Later that day, appellant left twenty or more messages for Paulson. When Paulson called him back, they arranged for appellant to come to the station for an interview. During that interview, appellant acknowledged J.S. called him “Dad,” he referred to J.S. as his “son,” and J.S. spent the night with him by himself. He also confirmed he babysat both J.S. and J.J. within the past couple of months, and both slept in the same bed with him. He denied touching either child.

At trial, J.S. testified appellant was his “dad.” J.S. said when he went to appellant’s home, he played video games. When he stayed overnight, he slept in the bed with appellant. J.S. said appellant “did something” to him that was “bad” and explained appellant put his “middle part” in J.S.’s “behind.” He said it “hurt.” Using a drawing of an unclothed boy, J.S. identified the body parts he called the “middle part” and “behind.” He said when he went to the restroom,' there was blood. On one occasion, he said, J.J. was in the room when appellant put his middle part in his behind. J.S. also said appellant “used to make” him “suck on his middle part” and appellant “peed” in J.S.’s mouth. J.S. said it tasted “[n]asty.”

J.J. testified he spent the night at appellant’s apartment with J.S, When it was time to go to sleep, he and J.S. slept in the bed with appellant. J.J. said he was awakened when he “felt something” in his “booty.” J.J. moved, and appellant grabbed his hand and placed it on appellant’s “private part.”Appellant pulled J.J, on top of him and “kept pushing” on his booty before saying, “It ain’t going nowhere.” At the time, J.J. had on a shirt and underwear. J.J. said he got up, and “some white stuff’ was on his shoulder. J.J. went to the bathroom to clean off his shoulder, and appellant made him come back into the room. Later that night, appellant put his private part into J.J.’s booty, At that 'time,- J.J.’s underwear was down by his knees. He told the jury appellant also made him “suck” on his private part and it made his mouth feel “nasty.” Appellant let- him stop when “[s]omething white” came out of appellant’s private part, and J.J. went to the bathroom and washed out his mouth. J.J. said he tried to get help from appellant’s mother by knocking on her bedroom door, but she told him to go away. He also tried to use appellant’s cell phone, but it fell behind the bed. Eventually, J.J. fell asleep on the floor. Although he said he did not see appellant do anything to J.S. that night, he felt the bed move and heard J.S. say, “Get off of me.” The bed stopped shaking when J.J. threatened to go tell. The next day, J.J. told J.S. what happened to him, and J.S. said it happened to him too.

Bibiana Dominguez, a forensic interviewer with the Dallas Children’s Advocacy Center, explained the process of interviewing alleged victims of child abuse. She said younger children have shorter attention spans and also communicate limited information. Dominguez interviewed both J.S. and J.J. J.S. did not seem focused at times and “bounced around.” But he made an outcry of sexual abuse and identified the perpetrator as his dad. J.J. also made an outcry and identified the perpetrator. She saw no signs suggesting the children had been coached.

Sandra Onyinanjay is a certified pediatric nurse practitioner and the Sexual Assault Nurse Examiner (SANE) coordinator at Reach Clinic at Children’s Medical Center in Dallas. Onyinanjay performed,examinations of both J.S. and J.J., and both were “normal.” She said she expected a “normal exam” because it had been one month since the last incident and any injuries would have healed in that time. She described the examination process and said the lack of abnormal medical findings did not necessarily mean that abuse did not occur. Rather, she explained, our bodies are made “to heal and recover” from traumatic, events and said it is uncommon to have -medical findings in a case where anal penetration has been alleged.

Katherine Duniond, a clinical supervisor at the Dallas Children’s Advocacy Center, testified generally about sexual abuse trauma and therapy techniques. She also explained the process of “grooming”' used by child offenders to “prepare” their victims. She said abusers groom the parents to gain their trust. They then begin to “work on” and “manipulate” the child, not only so the abuse can begin but also so it can continue. ' She explained • delayed' outcry and the reasons-children either wait to tell or never tell on their abusers. According to Dumond, some children are too young to understand what is happening to them. For example, a child who is being sexually abused by a father figure may believe “this is what fathers do.” After the State rested, .the defense called Dr. Michael Gottlieb, a psychologist who testified about the risk of altering a person’s memory through therapy. Other witnesses were recalled to highlight inconsistencies in J.J.’s testimony. After hearing the evidence, the jury found appellant guilty of sexually assaulting J.S. The trial court discharged the jury, heard the punishment evidence, and imposed a life sentence.

In his first issue, appellant contends the State failed to prove that venue was proper in Dallas County. He argues the evidence is “patently not clear” where the offense occurred, Dallas County or Tarrant County. We disagree.

Sexual assault may be prosecuted in the county where the act occurs. Tex, Code Crim. Proo. Ann. art. 13.15 (West 2015). Venue must be proved by a preponderance of the evidence. Id. art. 13.17 (West 2015). Proof of venue may be established by direct or circumstantial evidence, and the jury may draw reasonable inferences from the evidence. Cox v. State, 497 S.W.3d 42, 56 (Tex. App.—Fort Worth 2016, pet. ref d).

J.S.’s mother testified J.S. spent the night with appellant while appellant was living at the Cottonwood Apartments in Grand Prairie with his mother and brother. She thought the apartment was “probably” in Tarrant County, but she did not know. Appellant’s aunt testified that appellant’s mother lived in Grand Prairie. She also testified she believed the residence was in Tarrant County but was “not sure.”

Paulson, the Grand Prairie police detective assigned to the case, questioned appellant about the offense. Paulson testified he had been with Grand Prairie for ten years, first as a patrol officer, then as a member of the SWAT team, and then as a detective. The evidence showed appellant abused J.S. in an apartment in Grand Prairie where appellant lived with his mother. Although two witnesses thought the apartment could be located in Tarrant County, neither was certain. On the other hand, Paulson, a ten-year veteran of the Grand Prairie Police Department, gave unequivocal testimony that the apartment was located in Dallas County. Paulson’s testimony was sufficient for a reasonable jury to conclude by a preponderance of the evidence that the offense occurred in Dallas County. We overrule the first issue. •

In his second issue, appellant argues he is entitled to a new punishment trial because the reporter’s record on punishment has been lost and cannot be replaced.

After the appeal was perfected, the court reporter failed to file the reporter’s record, prompting this Court to abate the appeal for the trial court to conduct a hearing to determine, among other things, the reason for the delay. At the hearing, court reporter Sharina Fowler testified the record was complete through the jury’s verdict on guilt-innocence, but the record from the punishment phase was missing. She said she had made an exhaustive search but had “come up with nothing.”

Fowler made contemporaneous notes during the punishment phase. She told the court, “I make notes as they are testifying and, you know, for example if they’re a family member and in general what it is that they had to say when they were testifying. I make those hand notes.” From those notes, she said the State resubmitted its case-in-chief and put on no additional evidence. The defendant called.seven character witnesses, each of whom gave brief testimony. She explained that “most of them were anywhere from two minutes — I think the longest one was up- to seven minutes.” The State cross-examined only two of the witnesses. Fowler testified she had each witness’s name, the approximate time each witness testified, and “in general what it is that they had .to say when they were testifying.”

On questioning by the trial court, Fowler said the first witness was appellant’s brother, Dontae Foster, whose direct testimony lasted about seven minutes. Foster said appellant finished school through eighth grade and was “generous and honest.” He was cross-examined for about two minutes.

The second witness was Janea Foster, appellant’s twin sister. She testified for two-and-a-half minutes and said appellant had never been in trouble and was “goofy and generous.” She was not cross-examined.

The third witness was Jaray Foster, who testified appellant was helpful. The direct examination was two-and-a-half minutes followed by one minute of cross-examination.

The fourth witness was Yulana Foster, appellant’s mother. She testified for about three minutes and talked about appellant’s character and why he dropped out of school in the eighth grade. She was not cross-examined.

The fifth witness was appellant’s aunt, Selena Foster, whose, direct examination was about two minutes. She told the court appellant attended church at Calvary Full Gospel. She was not cross-examined.

The sixth witness was Bryant Foster, appellant’s cousin. He testified for about three minutes with no cross-examination.

The final witness was Montavyon Foster, whose direct examination lasted about six minutes. He testified to. appellant’s character and was not cross-examined.

Fowler said her notes would typically reflect any objections to the testimony, and her notes did. not reflect .objections were made. At the conclusion.of Fowler’s testimony, the trial court stated the following:

Okay. I just want to also put on the record that I am the one that did the punishment. That I do recall all the evidence from the guilt/innocence as well as the punishment. There were no objections made by either side. All seven witnesses for the Defense testified that as far as favorable evidence for the defendant, that he was — had a good character. They all asked nor [sic] leniency. The State did little on the cross of each of these witnesses, as per the previous testimony by the court reporter and what her notes reflect and based on what I heard during guilt/innocenee of the State — guilt/innocence phase in trial. I concluded that the evidence warranted a verdict of a life sentence, so that was the sentence I gave.

The trial judge also stated the entire punishment phase lasted about thirty minutes, which included the testimony followed by “very brief closing arguments.”

To be entitled to a new trial due to a missing record, appellant must show (1) he timely requested the reporter’s record, (2) a significant portion of the record has been lost or destroyed through no fault of his own, (3) the missing portion of the record is necessary to his appeal, and (4) the parties cannot agree on the record. See Tex. R. App. P. 34.6(f); Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003). The third requirement — that the missing record be necessary to the appeal — was meant to mitigate against the harshness of a rule that might require a new trial even when no error actually occurred in the proceedings. Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013).

Whether a missing portion of a reporter’s record is necessary to the appeal’s resolution is essentially a harm analysis. Routier, 112 S.W.3d at 571; Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999). When an appellant has not been harmed by the missing portion of the record, he should not be granted relief. Nava, 415 S.W.3d at 306. “[W]hen a trial judge’s recollection is clear and shows that the missing portion of the record would not affect the appeal, the reason for enacting the third requirement becomes apparent.” Id. When assessing a trial judge’s recollection, we should view the circumstances from the appellant’s standpoint and resolve any reasonable doubt resolved in his favor. Id.

In his brief, appellant argues that despite Fowler’s summary of the evidence presented, he is unable to determine “what was said during the punishment trial, including any comments or findings by the toial court.” Moreover, he asserts he cannot determine whether he received effective assistance of counsel. Specifically, he claims he “cannot make an argument concerning effectiveness of counsel, whether the trial court was impartial and neutral, nor perform a proper harm analysis” in the absence of a record. As authority, he relies on Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001).

In Kirtley, the defendant pleaded guilty to murder and was placed on deferred adjudication for ten years. Id. at 49. The State later filed a motion to adjudicate, which the trial court granted and then sentenced Kirtley to thirty years in prison. The reporter’s record from the adjudication/punishment hearing was destroyed by a tornado. Kirtley complained on appeal that the missing record precluded him from asserting an ineffective assistance of counsel claim. Id. at 50. This Court rejected his contention, concluding the missing record was not necessary to the appeal because the code of criminal procedure did not authorize an appeal from the determination to proceed with an adjudication of guilt. Kirtley v. State, No. 05-99-00236-CR, 2000 WL 688602, at *2 (Tex, App.—Dallas May 19, 2000) (op. on reh’g) (not designated for publication), vacated and remanded, 56 S.W.3d 48 (Tex. Crim. App. 2001). The court of criminal appeals disagreed, explaining an appellant may appeal errors occurring during the punishment phase of such a proceeding. 56 S.W.3d at 51-52. The court then summarily determined the missing record was necessary to Kirtley’s claim of ineffective assistance of counsel without considering whether the claim had any actual or potential merit. See id. at 52.

Two years later, the court addressed a complaint about a missing record in Routier v. State and suggested mere speculation that a missing record might show error is insufficient. In Routier, a death penalty case, the appellant complained she was entitled to a new trial because a portion of her record was missing, including the court’s instructions' to prospective jurors, which she claimed “was necessary to her appeal because prospective jurors received preliminary instructions that may have been erroneous.” Routier, 112 S.W.3d at 571. In response, the court stated:

The appellant includes no point of error regarding the instructions given to prospective jurors. The suggestion that instructions may have been erroneous, without more, does not make that portion of the record necessary to her appeal.

Id.

We agree with our sister courts who have interpreted Routier to be a “reverse course” from Kirtley, in which a bare assertion that a missing record may show ineffective assistance of counsel was sufficient to meet the necessity requirement of rule 34.6(f). See Nava v. State, 379 S.W.3d 396, 413 (Tex. App.—Houston [14th Dist.] 2012), aff'd, 415 S.W.3d 289 (Tex. Crim. App. 2013); Jimenez v. State, 307 S.W.3d 325, 334 (Tex. App.—San Antonio 2009, pet. refd) (appellant’s suggestion that missing portion of record potentially could have assisted him on appeal not sufficient to show necessity requirement); Cann v. State, No. 13-06-00535-CR, 2012 WL 5187929, at *9 (Tex. App.—Corpus Christi Oct. 18, 2012, pet. refd) (mem. op. on remand, not designated for publication) (rejecting defendant’s complaint about necessity of lost record, saying it was “not necessary for us to view the missing portion of the record to resolve a speculative claim that the portion may or may not reveal trial counsel’s ineffectiveness”). Any complaint appellant is unable to determine “what was said during the punishment trial, including any comments or findings by the trial court” is nothing more than pure speculation that the missing record could potentially assist him in his appeal.

As for his ineffective assistance of counsel argument, appellant did not include any such complaint in his motion for new trial (before either side knew about the missing record), has not suggested any potential ground, and does not actually assert counsel was deficient in any way; Further, in presenting an ineffective assistance of counsel argument on direct appeal, absent direct evidence from trial counsel as to the role trial strategy played in the decision-making process, appellate courts are reluctant to find the record sufficient to overcome the presumption of competence. Bone v. State, 77 S.W.3d 828, 833-34 (Tex. Crim. App. 2002). Moreover, appellant brought two punishment issues, neither of which required a transcript of the punishment phase for disposition as shown below.

Finally, we have reviewed the record before us and conclude appellant has not shown the lost portion of the reporter’s record is necessary for the resolution of his appeal.¹ Although appellant’s guilt was determined by a jury, his punishment was determined by the trial court following a thirty-minute proceeding. Missing from the record is the brief testimony of seven defense witnesses, who all testified to appellant’s good character and sought leniency for appellant. No objections were made to his evidence, and only two witnesses were cross-examined by the State for less than five minutes total. In other words, appellant presented the evidence he believed was most favorable to him in hopes of persuading the trial court to be more lenient in His punishment — and he did so virtually unfettered. The trial judge, however, was unpersuaded by appellant’s evidence. As the judge explained at the hearing on the lost record, she listened to the punishment evidence but concluded the facts of the case warranted a life sentence and imposed a life sentence. Those facts revealed appellant groomed J.S.’s mother to gain access to J.S., manipulated J.S. with games and toys to earn his trust, nurtured a relationship to the point J.S. called him “Dad,” and then sexually abused not only J.S., but another child he brought to the home. As the fact finder at punishment, the judge had the discretion to do as she did. Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1978) (“When a defendant waives a jury trial, the trial judge has discretion to assess the punishment within the range provided by law which he finds appropriate under the circumstances.”). Given the particular circumstances before us, we conclude the missing record is not necessary to the resolution of this appeal. To the extent the dissent reads our majority opinion to require a defendant to “show error actually occurred” before obtaining reversal for a lost or.missing record, such an interpretation stretches the meaning of our decision. We do not require-a defendant to prove actual error, only to identify some particular error that the missing record could potentially assist with in his appeal. We overrule the second issue.

In his third issue, appellant contends the trial court erred by allowing the State to adduce evidence about his sexual orientation during the testimony of Paul-son, the investigating officer. He contends the evidence was not relevant and was more prejudicial than probative.

During a break in Paulson’s testimony, outside the jury’s presence, the State informed the court that during Paulson’s interview of appellant, one of the issues discussed “was whether or not [appellant] had any attraction to men.” The State argued appellant’s answer was relevant “because these are young boys.” Defense counsel objected the testimony was not probative because “being gay doesn’t make you a pedophile" and also objected that its “probative value is far outweighed by the prejudicial effect,” The State countered that testimony showed appellant had access, to “females that spent the night” yet appellant did not commit a crime against them, indicating appellant’s “motive in assaulting the two males rather than the females that he had access to.” The State contended this was a “gender issue,” not an issue of appellant being attracted to “little boys versus grown men.” After hearing the ' arguments, the trial court overruled appellant’s objections and allowed one question on the issue.

When the jury returned, the State continued to ask Paulson questions about his interview of appellant. During this questioning, the State adduced the following testimony:

[PROSECUTOR]: Did you ask him this question, have you ever looked at-men in general as being sexually attractive?

[DETECTIVE PAULSON]: It was— Yeah, it was along those lines and he said, yes, that he had, but that he had never acted on it.

Later, on cross-examination, defense counsel questioned Paulson about his investigation and his interview of appellant. During this questioning, the following was ad-ducéd:

[DEFENSE COUNSEL]: ... I’m not sure I heard this right, but the prosecutor was asking you, what do you have that corroborates these people’s statements. Do you remember that question?

[PAULSON]: Yes, sir.

[DEFENSE COUNSEL]: And your answer was, well, he told us that he had thoughts about gay sex. Do you remember that?

[PAULSON]: Those — No, those were not the words.

[DEFENSE COUNSEL]: Well I’m not — I’m—Those are not the exact words I grant you.

[PAULSON]: I had asked him if he had ever had sexual thoughts about men.

[DEFENSE COUNSEL]: And he said yes.

[PAULSON]: Yes, sir, that he never acted on it,

[DEFENSE COUNSEL]: Now, how does being gay corroborate somebody being a pedophile?

[PAULSON]: I don’t think that would be gay, having thoughts.

[DEFENSE COUNSEL]: Well, I mean, the prosecutor asked you, what do you have to corroborate that he had these interests in boys. The answer- was he said he thought about having these— a sexual encounter with a 'man.

[PAULSON]: She asked that under a different questioning part. The corroboration part, the only three things I said were the names that he knew them as, that he babysat them and that they slept in the bed with him.

[DEFENSE COUNSEL]: So you would agree that being gay has absolutely nothing to do with pedophilia?

[PAULSON]: Correct.

Assuming without deciding the trial court erred by admitting the complained-of portion of Paulson’s direct testimony, we conclude the error is harmless. The erroneous admission of evidence is non-constitutional error. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Accordingly, any error must be disregarded unless it affected appellant’s substantial rights. See Tex. R. App. P. 44.2(b). Substantial rights are not affected 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. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

In assessing the likelihood the jury’s decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001). We examine the entire trial record and calculate, as much as possible, the probable impact of - the error upon the rest of the evidence. Coble, 330 S.W.3d at 280.

We question whether the complained-of evidence was in fact an affirmative statement about appellant’s sexual orientation. Paulson was asked one question on the issue on direct — whether he asked appellant if he “ever looked at men in general as being sexually attractive” — and Paulson responded that appellant said he had but had not acted on it. Appellant’s answer suggests nothing more than that appellant had found some men to be sexually attractive, not that he was homosexual. In fact, as shown in the above exchange, defense counsel initiated this line of questioning and incorrectly referred to “gay sex” during his cross-examination of Paulson.

But, to the extent the State’s question and Paulson’s answer could be perceived in such a way, we have examined the record and have a “fair assurance” its admission did not influence the jury or had but a slight effect. Appellant complains this evidence improperly suggests he had a propensity to molest “little boys.” But Paulson later denied using the statement as evidence to corroborate the crime, disagreed the statement evidenced appellant was homosexual, and agreed being “gay” had “absolutely nothing to do with pedophilia.” Thus, to the extent a juror may have inferred from Paulson’s direct that appellant had homosexual tendencies and then further inferred some correlation between homosexuality and pedophilia, Paul-son expressly refuted both views on cross-examination. We overrule the third issue.

In his fourth and fifth issues, appellant contends the life sentence is grossly disproportionate to the offense and violates the objectives of the penal code. Both issues were raised in a timely amended motion for new trial, which was overruled by operation of law without a hearing.

We begin with the fourth issue in which he complains about a disproportionate sentence. An allegation of disproportionate punishment is a valid legal claim. State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). The concept of proportionality is embodied in the Eighth Amendment to the United States Constitution’s ban on cruel and unusual punishment and requires that punishment be graduated and proportioned to the offense. U.S. Const, amend. VIII. This is a “narrow principle,” however, that does not require strict proportionality between the crime and the sentence. Simpson, 488 S.W.3d at 322 (citing Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring)). Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime. Id. (citing Ewing v. California, 538 U.S. 11, 23, 123 (S.Ct. 1179, 155 L.Ed.2d 108 2003) (plurality opinion)). A sentence is grossly disproportionate to the crime “only in the exceedingly rare or extreme case.” Id. at 322-23. Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual. Id. at 323.

To determine whether a sentence is grossly disproportionate for a particular defendant’s crime, we judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender’s prior adjudicated and unadjudi-cated offenses. Id. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, we then compare the defendant’s sentence with the sentences of other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. Id. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual. Id.

Here, appellant was convicted of a first-degree felony, aggravated sexual assault of a child, and his sentence fell within the range allowed for the offense. See Tex. Penal Code Ann. §§ 22.021(a)(l)(B)(i), (a)(2)(B), (e) (West Supp. 2015), 12.32 (West 2011). The evidence at trial showed appellant was a part of J.S.’s life from birth. He took him places, bought him toys, and had him spend the night on weekends. He was so much a part of J.S.’s life that J.S. asked his mother if he could call appellant dad. After earning J.S.’s love and trust, appellant began sexually abusing him. Appellant anally assaulted J.S. when J.S. was six years old and forced J.S. to perform oral sex on him. When J.S.’s ten-year-old uncle, J.J., went with J.S. to spend the night at appellant’s apartment, the evidence showed appellant also abused J.J. Having reviewed the record, this is not one of those “rare” cases that leads to the inference that appellant’s sentence was grossly disproportionate to the offense. Consequently, we see no need to compare his sentences to sentences imposed on others. See Simpson, 488 S.W.3d at 323. We overrule the fourth issue.

In his fifth issue, appellant argues the trial court erred by sentencing him to life in prison because the sentence violates the objectives of the penal code by, presumably, not giving due regard to one of the objectives, rehabilitation. He argues that even without a full punishment record, the court can “ascertain” he was “not without redeeming qualities making him a good candidate for rehabilitation” and that he was not “irredeemable in the eyes of the law.”

We give a great deal of discretion to a trial judge’s determination of the appropriate punishment in any given case. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Additionally, the general rule is that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal. Id.

As explained previously, appellant’s sentence is within the proper range of punishment. Moreover, included in the penal code’s objectives are deterrence and punishment as necessary to prevent the likely recurrence of criminal behavior. See Tex. Penal Code Ann. § 1.02(1)(A), (C) (West 2011). Although appellant argues the sentence is not “necessary to prevent the recurrence of the offense,” we cannot agree. As previously set out, the evidence in this case showed appellant anally assaulted a six-year-old boy who looked on him as a father and also forced the child to perform oral sex on him. In addition, the evidence showed he sexually abused another young boy in the same manner and also made “sexual gestures” to other small children. Incarceration will prevent the recurrence of such criminal behavior because appellant will not have access to children. Incarceration does not, however, mean he will be denied the opportunity for rehabilitation. Given the nature of the offense and its circumstances, we cannot conclude appellant’s sentence violates the penal code’s objectives. We overrule the fifth issue.

In a cross-issue, the State asks that we modify the judgment to correct several errors. On June 15, 2017, we abated the appeal and ordered the trial court to enter a corrected judgment containing all statutorily mandated information. We have received the supplemental clerk’s record containing the corrected judgment. Consequently, the State’s cross-issue is moot.

We affirm the trial court’s judgment.

Schenck, J., concurring

Brown, J., dissenting

1 . Although the hearing reflects the parties would not agree to a record, the trial court did not specifically inquire as to whether they could agree nor did it make a finding on this requirement. In his brief, appellant confirms his objections at the hearing to Fowler’s testimony and to the summary of the missing record and admission of her notes.