EDMUND RAUL FLORES v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION ON REHEARING

Opinion By Justice Lang–Miers

We grant the State's motion for rehearing, withdraw our opinion of June 8, 2012, and vacate the judgment of that date.   A jury convicted Edmund Raul Flores of indecency with a child by contact.   See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011).   The jury assessed punishment, enhanced by a prior conviction, at life in prison.   In two issues, appellant argues that the evidence is insufficient to support the verdict and that the record does not show the State provided notice of its intent to enhance his punishment.   For the following reasons, we affirm.

On original submission, the Court sustained appellant's second issue, reversed appellant's sentence, and remanded for a new punishment hearing because the record did not contain notice of the State's intent to enhance the punishment range.   A few days after our opinion issued, the district clerk filed a supplemental record containing the notice of intent to enhance, and the State filed a motion for rehearing urging us to reconsider issue two.   Appellant argues that there is no valid basis to allow the State to supplement the record at this late date.   However, the State briefed issue two as if the notice of intent to enhance was part of the record.   It stated that it had requested a supplemental record and that a supplemental record had been filed, and its brief on original submission included record references to the supplemental record.   See Watson v. State, 587 S.W.2d 161, 162 (Tex.Crim.App.1979) (withdrawing opinion reversing conviction and issuing opinion affirming conviction after record supplemented);  Lopez v. State, 314 S.W.3d 70, 72–73 (Tex.App.—Waco 2010, no pet.).   The supplemental record states that it was prepared on September 9, 2011, which was seven days before the State filed its brief.   For some reason, the physical supplemental record was not transferred to this Court.   We have wide discretion to supplement the record to include omitted documents.   See Tex.R.App. P. 34.5(d), 34.6(d).  We conclude that these are circumstances under which the State is allowed to supplement the record.   See Lopez, 314 S.W.3d at 72 (citing Zule v. State, 820 S.W.2d 801, 801–02 (Tex.Crim.App.1991)).

Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is insufficient to support the conviction.   We disagree.

Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.).   We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326.

Applicable Law

A person commits the offense of indecency with a child by contact if the person engages in sexual contact with a child younger than 17 years old with the intent to arouse or gratify the person's sexual desire.  Penal § 21.11(a)(1) & (c)(1).  “Sexual contact” means “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child.”   Id. § 21.11(c)(1).   The uncorroborated testimony of a child victim is sufficient to support a conviction for indecency with a child.  Tex.Code Crim. Proc. Ann. art. 38.07 (West Supp.2011);  Tear v. State, 74 S.W.3d 555, 560 (Tex.App.—Dallas 2002, pet. ref'd).

The Evidence

The complainant was ten years old when she testified at trial.   Appellant is her uncle.   She said she went to visit her cousins, appellant's stepchildren, at her aunt and uncle's apartment about four times, and that when she was seven and eight, appellant touched her inappropriately with his hand.   She described one incident that occurred as she was sitting on the couch watching a television show with appellant;  he was sitting next to her.   He began to rub her thigh “back and forth” and then he rubbed her “front private” “back and forth” with his hand over her jeans.   She said it made her feel uncomfortable.   The complainant next described an incident in appellant's bedroom.   She said she was sitting on the bed and appellant was behind her.   He rubbed her “back private” “back and forth” over her clothes and it made her feel uncomfortable.   She said appellant told her not to tell anyone because he might hurt her or her family.   She said she did not believe appellant and several months later she told her grandmother and then her mother “a little bit” about what appellant did.

The complainant's grandmother testified that appellant is her half brother, that they grew up in separate homes, and that she did not meet him until she was about 16 years old.   Appellant was serving time in a federal prison and, after his release, moved in with Grandmother and stayed with her for about a year.   At that time, Grandmother was also keeping several grandchildren and step-grandchildren, including the complainant's cousins.   Amanda, Grandmother's stepdaughter and the cousins' mother, also lived with Grandmother.   Appellant and Amanda became involved in a romantic relationship and eventually moved to their own apartment.

At some point, the complainant's cousins—Amanda's four daughters and one son—moved back in with Grandmother, and the complainant would come over often to spend the night with her cousins.   On one such occasion, Grandmother and the complainant were the only ones up watching television, and the complainant told Grandmother that something bad had happened to her.   Grandmother described the complainant's demeanor as normally “real perky and in your face,” but when Grandmother was having this conversation with the complainant, the complainant “just held her head down and she talked very slow almost like she was ashamed.”   Based on what was said, Grandmother called her son, the complainant's father, and took the complainant back to the complainant's mother's house.   The complainant told her mother about what happened.   Mother described the complainant's demeanor as “uncomfortable, sad” and “she wouldn't look at me.   She wouldn't give me eye contact.   She started to cry a little bit.”   Mother said the complainant stared at the floor and did not tell her many details.   Grandmother called CPS that same night and wrote a letter to CPS the next day describing what the complainant had told her.

On cross-examination, Grandmother testified that Amanda's three oldest daughters also made allegations of physical or sexual abuse against appellant.   She said after the complainant told her about what appellant did, she (Grandmother) told Amanda's three daughters about it, explained to them that if anything like that ever happened they were not bad girls and would not be in trouble, and then asked if anything like that had ever happened.   She said all three girls raised their hands and they all started talking at once.   She made them slow down and tell her “a little something.”   Grandmother testified that she composed herself, left the room, threw up and cried.   She took all four girls to CPS.

Dora Martinez, a forensic interviewer with the Dallas Children's Advocacy Center, testified that she interviewed the complainant using a process called RATAC, which is an acronym for rapport, anatomy identification, touch inquiry, abuse scenario, and closure.   She described each phase of the interview process for the jury.   Martinez testified that during the interview, the complainant made an outcry that she had been touched on her “private part.”   She identified appellant as the one who had touched her.   And she identified her “private part” as her vagina.   She said appellant had touched her “private part” with his hand underneath her clothes, but over her panties, that it made her “private part” hurt and sore.   Martinez testified that the complainant said this happened multiple times, but Martinez did not recall whether the complainant told her how many times it had occurred.

The State introduced into evidence a statement that the complainant made during a therapy session after listening to a story about “Kit,” a cat who had been inappropriately touched.   The complainant was given a paper with a picture of Kit on it and was asked to write Kit a note that would encourage her.   The complainant wrote, “Kit I fell sorry for you.   And I have been though the same thing!   I know how you fell. you are not responsebale.   You are luky that you told erly cause I dident.”

Appellant testified in his defense.   He testified about his work schedule and said he was never alone with the complainant and denied committing the offense.   He said Amanda was pregnant at that time and stayed home with the children.   He also said that the kids usually stayed in their bedrooms watching television while the adults watched television in the living room.   But he also admitted that when he stayed home from work he and the girls would rent “kid videos” and watch them in the living room and sometimes the complainant would be there.   He admitted that he had been incarcerated in a federal prison for a drug offense and possession of a firearm.   And he admitted that there are five similar sexual abuse charges pending against him involving the complainant's brother and at least one of the complainant's cousins (his stepdaughter).   But he testified that he did not commit those offenses, the children are making up the allegations, and he was never alone with them.

Analysis

Appellant does not challenge the sufficiency of the evidence to support the elements of the offense of indecency with a child.   Instead, he argues on appeal that the complainant's testimony at trial was inconsistent in many respects with her prior statements about what happened and shows that she falsely accused him of this crime.   He points out that the complainant said she visited her cousins at appellant's apartment only about four times, whereas her mother testified it was more like once or twice a month for a year.   At trial the complainant testified appellant last touched her inappropriately in the first two weeks of January 2008, whereas she told the forensic interviewer that the last event occurred “about four to six months” before the interview, which was in December 2008.   He also points out inconsistencies about whether appellant's wife was at work when the complainant was visiting, and whether appellant touched her beneath or over her clothes.   Appellant contends that the complainant “is so lacking in credibility [that] her testimony is legally insufficient to support the verdict.”

Viewed under the appropriate standard, we conclude that the evidence is legally sufficient to support the conviction.   The jury resolved any conflicts in the evidence in the State's favor, and impliedly found the complainant more credible than appellant.   We defer to the jury's resolution of conflicts in the evidence and credibility determinations.   See Jackson, 443 U.S. at 326.   And the testimony of a child victim alone is sufficient to support a conviction for indecency with a child.   Crim. Proc. art. 38.07;  see Tear, 74 S.W.3d at 560.   We resolve appellant's first issue against him.

Notice of Intent to Enhance Punishment

In issue two, appellant argues that the record on appeal does not contain notice of the State's intent to enhance his punishment and, as a result, his sentence was improperly enhanced and is void.   We disagree.

The supplemental record in this case shows that on August 26, 2010, over three months before appellant's trial in December 2010, the State filed a “Notice of Intent to Enhance Punishment Range with Prior Felony Conviction.”   The notice included details about the offense of conviction, the trial cause number, the convicting court, and the date of conviction.   See Fairrow v. State, 112 S.W.3d 288, 294–95 (Tex.App.—Dallas 2003, no pet.);  Sears v. State, 91 S.W.3d 451, 454 (Tex.App.—Beaumont 2002, no pet.).   At trial, appellant entered a plea of true to the prior conviction alleged for enhancement, and the trial court instructed the jury to find the enhancement paragraph true.   The court also instructed the jury that appellant's plea of true increased the punishment range from a second-degree felony to a first-degree felony and that the punishment range for a first-degree felony was life or not less than five years or more than ninety-nine years in the penitentiary.   See Tex. Penal Code Ann. §§ 12.32, .42(b).  The jury sentenced appellant to life in prison, which was within the punishment range for the offense of conviction as enhanced.

Based on the supplemental record before us, we conclude that the sentence was not improperly enhanced.   See Roberts v. State, 321 S.W.3d 545, 552–53 (Tex.App.—Houston [14th Dist.] 2010, pet. ref'd) (citing Pena v. State, 191 S.W.3d 133, 144 (Tex.Crim.App.2006)).

We resolve issue two against appellant.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

EDMUND RAUL FLORES, Appellant

No. 05–11–00051–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 291st Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–13269–U).

Opinion delivered by Justice Lang–Miers, Justices Moseley and Murphy participating.

We vacate our judgment dated June 8, 2012.   Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 3, 2012.

/Elizabeth Lang–Miers/

ELIZABETH LANG–MIERS

JUSTICE

ELIZABETH LANG–MIERS JUSTICE