Armsteadv.State

Court of Appeals Fifth District of Texas at DallasJun 11, 2019
No. 05-18-01103-CR (Tex. App. Jun. 11, 2019)

No. 05-18-01103-CR No. 05-18-01104-CR

06-11-2019

CHEVIS JOVAN ARMSTEAD, SR, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F-1575628-Q
, F-1575629-Q

MEMORANDUM OPINION

Before Justices Bridges, Brown, and Nowell
Opinion by Justice Nowell

In two cases, a jury convicted Chevis Jovan Armstead, Sr. of aggravated sexual assault of a child and assessed punishment at fifty years in prison and a $10,000 fine in each case. The trial court sentenced appellant in accordance with the verdict and ordered the sentences to run concurrently. Appellant contends the evidence is insufficient to support the verdict, the court erred in instructing the jury in the punishment charge, and the judgment contains an incorrect finding. The State agrees the finding is incorrect, but argues the judgment should be modified to include a finding supported by the record. We modify the trial court's judgments to reflect a finding under article 42.015(b) of the code of criminal procedure and affirm the trial court's judgments as modified.

BACKGROUND

The complaining witness, L.A., is Armstead's daughter. Armstead married L.A.'s mother, Trojer Brown, in 1999. L.A. was born in 2001. The family lived in Oklahoma until Armstead and Brown divorced in 2006. Afterwards, Brown and her children moved to Texas.

In 2015, Armstead moved to Texas with his girlfriend. On Mother's Day weekend 2015, Armstead asked Brown if L.A. could come and spend the night for a visit. L.A. was thirteen at the time. Brown agreed. That night after L.A. went to bed, Armstead came into her room and tried to kiss her. She resisted. He put his hand inside her panties and touched her vagina. On cross-examination, she said her put his finger inside her vagina. She texted her brother that night about what happened. Her brother thought she was joking at first, but then wanted to come pick her up. She asked him not to. The next morning, Armstead took her to have breakfast. When they returned to the apartment, Armstead again tried to kiss her, then put his hand inside her pants. He undid her pants and put his finger insider her vagina. He then pulled her pants down and put his mouth and tongue on her vagina. She was able to text her friend while this was happening and also texted her brother. Her brother and a friend came to pick her up and took her home. She eventually told her mother what happened. Her mother called the police.

L.A. was examined at Children's Hospital. Forensic testing of L.A.'s clothes and vaginal swabs revealed no evidence of Armstead's DNA. L.A. was interviewed at Dallas Children's Advocacy Center (DCAC) and described the sexual assault in two interviews. During therapy at DCAC, L.A. wrote a narrative of the abuse.

Detective Dior-Ali Cupid asked L.A. to call Armstead while Cupid recorded the conversation. During the call, Armstead apologized and promised "not to do what he did last time." L.A. could not think of anything he would be apologizing for except for the sexual abuse she described. Armstead testified that he was only apologizing for teasing L.A., not for any assault. He also testified he did not touch L.A. inappropriately on Saturday night or on Sunday.

The jury found Armstead guilty of aggravated sexual assault of a child by digital penetration and by oral contact.

ANALYSIS

A. Sufficiency of the Evidence

In his first issue, Armstead challenges the sufficiency of the evidence to support the jury's verdict that he penetrated L.A.'s sexual organ with his finger. He argues L.A. was uncertain whether his finger penetrated her vagina or merely touched the outside and her testimony was not supported by other evidence. He does not challenge the sufficiency of the evidence in the oral contact case.

We review a challenge to the sufficiency of the evidence on a criminal offense for which the State has the burden of proof under the single sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). Under this standard, the relevant question is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011). 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. Id. Therefore, in analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. When the record supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the verdict and therefore defer to that determination. Id. Direct and circumstantial evidence are treated equally: circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id.

As applicable in this case, a person commits aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means and the victim is younger than fourteen years of age, regardless of whether the person knows the age of the victim at the time of the offense. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B). The statute does not require vaginal penetration. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); Backusy v. State, 05-17-01288-CR, 2018 WL 5730166, at *2 (Tex. App.—Dallas Nov. 2, 2018, pet. ref'd); Carmond v. State, No. 05-16-01316-CR, 2018 WL 3135098, at *1 (Tex. App.—Dallas June 27, 2018, no pet.) (mem. op., not designated for publication). Instead, penetration occurs so long as contact with the female sexual organ "could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips." Vernon, 841 S.W.2d at 409-10; see also Carmond, 2018 WL 3135098, at *1; Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.) ("[t]ouching beneath the fold of the external genitalia amounts to penetration" within the meaning of section 22.021).

A child victim's testimony, standing alone and without corroboration, is sufficient to support a conviction for aggravated sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1). During her direct testimony, L.A. testified Armstead was "fingering [her] vagina." Initially, she said she did not recall if it was "just over or inside" her vagina. However, on cross-examination she testified Armstead put his fingers in her vagina Saturday night. She said her memory of the events was clear, but the order was not. While L.A. did not recall at first whether Armstead's fingers touched inside or over her vagina on Saturday night, after recounting the rest of the events and "put[ting] the pieces together," she testified he put his fingers in her vagina both Saturday night and Sunday morning. We presume the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).

Viewing all the evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We overrule appellant's first issue.

B. Verdict Form

In his second issue, Armstead argues the punishment charge was erroneous because the verdict form did not include a place for the jury to find the enhancement allegation true.

The State has the burden of proof to show that any prior conviction used to enhance a sentence was final under the law and that the defendant was the person previously convicted of that offense. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). A plea of "true" will satisfy the State's burden of proof. Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981). When the defendant pleads "true" to an enhancement allegation, it is permissible for the trial court to charge the jury on punishment as though the primary offense carries the enhanced punishment. Harvey, 611 S.W.2d at 112.

The State alleged in a written notice that Armstead had a prior felony conviction in Oklahoma. Armstead pleaded "true" to the prior felony conviction. The trial court instructed the jury in the punishment charge that Armstead pleaded "true" to the enhancement allegation, they were to find the allegation true, and to assess punishment within the enhanced punishment range. The verdict forms permitted the jury to assess punishment within the range of punishment for a first degree felony enhanced by one prior felony conviction. See TEX. PENAL CODE ANN. §§ 12.32(a), 12.42(c)(1). Based on Armstead's plea of true to the enhancement allegation, the trial court properly instructed the jury on the range of punishment applicable in these cases. See Harvey, 611 S.W.2d at 112. We overrule appellant's second issue.

C. Modification of the Judgments

In his third issue, Armstead argues the trial court's finding under Article 42.017 in the judgments is incorrect and should be deleted. See TEX. CODE CRIM. PROC. ANN. art. 42.017. The State agrees the finding is incorrect, but contends the record supports the finding required by Article 42.015(b) of the code of criminal procedure. Id. art. 42.015(b). This Court may modify the trial court's judgment to make the record speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W. 2d 26, 31 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W. 2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd).

The trial court included the following finding in the judgments in both cases on appeal:

The Court FINDS that at the time of the offense, Defendant was younger than nineteen (19) years of age and the victim was at least thirteen (13) years of age. The Court FURTHER FINDS that the conviction is based solely on the ages of Defendant and the victim or intended victim at the time of the offense. TEX. CODE CRIM. PROC., art. 42.017.


Article 42.017 applies to the trial of an offense under Section 21.11 or 22.011 of the Penal Code. Armstead was tried under Section 22.021 of the Penal Code in both cases. Accordingly, we agree that the Article 42.017 does not apply to these cases.

In the trial of a sexually violent offense, the Code of Criminal Procedure requires an affirmative finding if the judge determines that the victim of was younger than fourteen years of age at the time of the offense. See TEX. CODE CRIM. PROC. ANN. art. 42.015(b). A "sexually violent offense" includes aggravated sexual assault under Section 22.021 if "committed by a person 17 years of age or older." Id. art. 62.001(6)(A).

The record indicates that Armstead was 20 years old in 1999 and 39 years old at the time of trial in April 2018. The evidence indicates the offenses occurred in May 2015. L.A. was thirteen-years old at the time of the offenses. We agree with the State that the record supports a finding under Article 42.015(b). Accordingly, we modify the judgments to delete the finding under Article 42.017 and to reflect a finding that the victim "was younger than 14 years of age at the time of the offense."

CONCLUSION

We modify the judgments in both cases to delete the finding under Article 42.017 and to include a finding under Article 42.015(b) that the victim or intended victim was younger than 14 years of age at the time of the offenses. As modified, we affirm the trial court's judgments.

/Erin A. Nowell/


ERIN A. NOWELL


JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
181103F.U05

JUDGMENT

On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1575628-Q.
Opinion delivered by Justice Nowell. Justices Bridges and Brown participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The finding on the second page immediately above the trial court's signature stating:


The Court FINDS that at the time of the offense, Defendant was younger than nineteen (19) years of age and the victim was at least thirteen (13) years of age. The Court FURTHER FINDS that the conviction is based solely on the ages of Defendant and the victim or intended victim at the time of the offense. TEX. CODE CRIM. PROC., art. 42.017


is DELETED and the following is substituted in its place:


The Court enters an affirmative finding that the victim or intended victim was younger than 14 years of age at the time of the offense. Tex. Code Crim. Proc. Ann. art. 42.015(b).

As MODIFIED, the judgment is AFFIRMED. Judgment entered this 11 day of June, 2019.

JUDGMENT

On Appeal from the 204th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1575629-Q.
Opinion delivered by Justice Nowell. Justices Bridges and Brown participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The finding on the second page immediately above the trial court's signature stating:


The Court FINDS that at the time of the offense, Defendant was younger than nineteen (19) years of age and the victim was at least thirteen (13) years of age. The Court FURTHER FINDS that the conviction is based solely on the ages of Defendant and the victim or intended victim at the time of the offense. TEX. CODE CRIM. PROC., art. 42.017


is DELETED and the following is substituted in its place:


The Court enters an affirmative finding that the victim or intended victim was younger than 14 years of age at the time of the offense. Tex. Code Crim. Proc. Ann. art. 42.015(b).

As MODIFIED, the judgment is AFFIRMED. Judgment entered this 11 day of June, 2019.