Court of Appeals of Texas, First District, Houston
On Appeal from the 122nd District Court, Galveston County, Texas. Trial Court Case No. 11CR3528.
For APPELLANT: Stephen C. Taylor, Conroe, TX.
For STATE: Jack Roady, District Attorney - Galveston County, TX; Allison Lindblade, Assistant District Attorney, Galveston County, TX.
Panel consists of Keyes,
Higley, and Massengale Justices.
Evelyn V. Keyes Justice.
A jury convicted appellant, Joey Dewayne Jones, of the second-degree felony offense of indecency with a child and assessed punishment at ten years' confinement. In two issues, appellant contends that (1) the State failed to present sufficient evidence that he touched the complainant's genitals, as alleged in the indictment, and (2) the trial court erroneously assessed attorney's fees for his court-appointed attorney against him.
We modify the judgment of the trial court and affirm as modified.
In the summer of 2011, Sandtesia Hudson needed someone to watch her four-year-old daughter, the complainant, O.H., while she was at work. While at work one day, she met Roberta Jones Swearington, who noticed that Sandtesia appeared distressed and asked her what was wrong. After Sandtesia explained her childcare dilemma, Roberta first offered to contact one of her relatives. That individual was not able to watch O.H., so Roberta, who acted as the caretaker for her elderly mother, offered to take care of O.H. as well while Sandtesia was at work. Roberta watched O.H. for approximately three months without incident, and both Sandtesia and O.H. had a good relationship with her.
Appellant moved in with Roberta, his older sister, in 2011. Sandtesia testified that she and O.H. had met appellant on several occasions and that O.H. knew appellant as " Peanut." On November 14, 2011, Roberta called Sandtesia in the morning, before Sandtesia had dropped O.H. off at Roberta's house, and told her that she needed to take her mother to the hospital. Roberta assured Sandtesia that she would not be gone long and that appellant would be at the house and could watch O.H. Sandtesia dropped O.H. off at Roberta's house around 2:00 p.m.
Sandtesia picked O.H. up after her shift ended around 11:30 p.m. O.H. was watching television when Sandtesia arrived, and she testified that nothing about O.H.'s behavior appeared out of the ordinary. O.H. waved to appellant and told him " bye" before getting in Sandtesia's car. Sandtesia testified that, normally, when she drove O.H. home, they would talk about what she did that day and whether she behaved for Roberta. This evening, when Sandtesia asked O.H. how her day had been, O.H. replied, " I didn't do anything." Sandtesia asked, " You didn't do anything the whole day?" O.H. started crying in response. Sandtesia testified that this response was " very unusual because [O.H. is] always ready to tell [Sandtesia] how exciting her day was and what [she] and [Roberta] did."
O.H. then stated, " If I tell you, you're going to be mad at me," and Sandtesia reassured her that she would not get mad, but she needed to know what had happened. O.H. told Sandtesia that she and appellant were " playing--doing grown stuff." Sandtesia testified that O.H. told her that they were " doing things that grown-ups should do," specifically, appellant touched her " in her private area, her poopah" and kissed her. O.H. elaborated that appellant had picked her up, wrapped her legs around him, and sat down on the couch so that O.H. was sitting on his lap. O.H. told Sandtesia that appellant then laid her on her back and kissed her, both on her mouth and on her neck, and then touched her " poopah," which was the phrase that O.H. used to refer to her vagina. O.H. clarified that appellant touched her over her clothes.
Sandtesia stressed the importance of telling the truth and asked O.H., " Are you sure this happened?" O.H. responded, " Yes." Sandtesia asked O.H. why she did not tell Roberta what had happened when she arrived back at the house, and O.H. responded, " Because he told me not to tell. It was a pinky promise or he would get me." Sandtesia had never heard O.H. speak of " pinky promises" before that night. Sandtesia testified that O.H. was crying and scared while she related this information.
Instead of continuing home, Sandtesia immediately drove O.H. to the League City Police Department (" LCPD" ) and explained to an officer what O.H. had told her. Sandtesia later took O.H. for a forensic interview at the Child Advocacy Center. The State did not offer the tape of that interview for admission into evidence.
O.H., who was six years old at the time of trial, also testified. Before her testimony, the trial court briefly questioned her to make sure that she knew the difference between a lie and the truth. O.H. stated that she would tell the truth, " what really happened," while she testified. O.H. testified that she remembered staying at Roberta's house and that she liked Roberta. She also testified that she remembered appellant, whom she referred to as Peanut, and she identified him in court. The State showed O.H. an anatomically correct diagram and asked O.H. to identify several body parts. When the State pointed to the diagram's private area, O.H. agreed that she called it the " poopah." When asked where appellant touched her, O.H. pointed to the diagram's private area and stated that she did not " feel comfortable saying" the name of it. She testified that appellant touched her with his hands and that he did not touch her anywhere else. She also agreed that appellant kissed her, but she did not " feel comfortable" saying where on her body he had kissed her.
On cross-examination, O.H. testified that Sandtesia told her that appellant was going to be present at the trial, but that she did not tell her " what [she] should talk
about." O.H. stated that she did not know why she never went back to Roberta's house and that something happened the last time she was there, but she did not " feel comfortable saying it." She stated that she told Sandtesia what had happened to her, but she did not tell Roberta because she was scared. She did not feel comfortable relating what she had told Sandtesia ...