Frelix v. State

CHARLIE FRELIX III, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-18-00290-CR

Court of Appeals Seventh District of Texas at Amarillo

September 13, 2019

On Appeal from the 297th District Court Tarrant County, Texas

Trial Court No. 1491849D, Honorable David C. Hagerman, Presiding

MEMORANDUM OPINION

Before CAMPBELL and PIRTLE and PARKER, JJ.

Following a jury trial, appellant Charlie Frelix III was convicted of the second-degree felony offense of sexual assault of a child under seventeen years of age¹ and sentenced to a term of imprisonment of fifteen years.² Appellant challenges his conviction through two issues. We will affirm.

Background

Appellant was charged via a four-count indictment with one count of continuous sexual assault of a child under the age of fourteen and three counts of aggravated sexual assault of a child under the age of fourteen. After hearing the evidence, the jury found appellant not guilty of the four charged offenses, but guilty of a lesser-included offense to one count, sexual assault of a child under the age of seventeen.

The complainant, D.W., lived with her father in an apartment complex in Fort Worth. The father testified they lived in those apartments for "about a year and a half" when D.W. was "13, 14 years old . . . ." When she was thirteen, appellant, a man in his twenties, began visiting the family's apartment. At some point, the father testified, he noticed D.W. was frequently away from the apartment. He would see her enter a friend's nearby apartment and would observe appellant going in and out of the apartment "all the time."

D.W. testified that at a point during the events, her relationship with appellant became sexual. During her testimony, she acknowledged that appellant put his penis in her vagina, that appellant's mouth went on her vagina, and appellant's penis went into her mouth. She told the jury these acts took place in her friend's apartment, at appellant's home, and "probably" in appellant's car. Later in her testimony, D.W. admitted that she has "a history of making up things and lying."

D.W. also testified that around the time she had a relationship with appellant, she and a female friend decided to become prostitutes to make money. She said she was "picked up" by police a couple of times for prostitution and was later arrested for the offense. During a discussion with an officer about her involvement in prostitution, D.W.told about her relationship with appellant. As a result of that conversation, D.W. went to Cook Children's Hospital for a sexual assault examination.

D.W. also was interviewed by a Homeland Security agent working with Fort Worth police on human trafficking cases. Based on information he received from D.W., the agent identified Facebook accounts he believed belonged to D.W. and to appellant. He obtained a search warrant for records from Facebook and received from the company a volume of pages for each account. The State offered into evidence pages containing iMessages identified as exchanged between appellant and D.W. During cross-examination, the agent acknowledged his lack of personal knowledge regarding the records and acknowledged he relied on Facebook to deliver the proper records. D.W. testified outside the presence of the jury to conversations she had with appellant through Facebook and agreed the proffered records contained messages they exchanged. Appellant objected the documents were not properly authenticated. The court overruled the objection, the documents were admitted into evidence, and the State read parts of the exhibit to the jury.

Appellant now appeals his conviction, arguing the evidence at trial was insufficient to support his conviction for sexual assault of a child under the age of seventeen and arguing the trial court erred by admitting the Facebook records into evidence.

Analysis

Issue One - Sufficiency of the Evidence

In considering whether the evidence is sufficient to support a conviction, we review all the evidence in the light most favorable to the verdict and assume that the trier of factresolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—Amarillo 2017, pet. ref'd) (citing Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). For this purpose, we consider evidence that was improperly admitted before the jury, as well as that properly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Ryder, 514 S.W.3d at 396. The jury is the sole judge of a witness's credibility, and the weight to be given the testimony. Ryder, 514 S.W.3d at 396 (citing Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). We consider only whether the jury reached a rational decision. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). The testimony of a child sexual abuse victim alone is sufficient to support a conviction for sexual assault of a child under the age of seventeen. TEX. CODE CRIM. PROC. ANN. art. 38.07(a).

To support the jury's finding appellant was guilty of the lesser-included offense of sexual assault of a child under the age of seventeen, under the indictment in this case, the State had to prove appellant intentionally or knowingly caused his sexual organ to contact the sexual organ of D.W., a child younger than seventeen years of age. TEX. PENAL CODE ANN. § 22.011(a)(2)(C), (c)(1). Knowledge of the victim's age is not an element of the offense. See id. (setting forth elements of offense).

D.W., sixteen at the time of trial, testified she and appellant were in a relationship and engaged in sexual behavior, including penetrating sex, when she was thirteen years old and appellant was in his twenties. D.W. also testified she engaged in other sexual acts with appellant, including penile-oral contact and vaginal-oral contact. She told thejury these acts occurred frequently and in several locations. The jury could have seen some uncertainty in the testimony regarding D.W.'s age at the time their sexual relationship began. D.W.'s testimony alone is sufficient to support appellant's conviction for the lesser-included offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a). See also Taylor v. State, 555 S.W.3d 765, 774-75 (Tex. App.—Amarillo 2018, pet. ref'd) (finding the child victim's testimony was sufficient evidence of each of the essential elements of the offenses for which the defendant was convicted).

Appellant argues the only evidence supporting his conviction came from D.W., an admitted liar. He contends that because D.W. herself and other witnesses testified that she often lied and made up stories, her testimony should not have been believed and thus was not sufficient to support his conviction. Appellant's entire argument here is that D.W. was not credible. But it is for the jury to determine the credibility of witnesses. Ryder, 514 S.W.3d at 396 (citing Isassi, 330 S.W.3d at 638). See also Taylor, 555 S.W.3d at 774. As the reviewing court, we "should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002) (citation omitted). As noted, D.W.'s testimony supported each element of the offense of sexual assault of a child under the age of seventeen. The jury, as evidenced by its verdict finding guilt, believed D.W.'s testimony.

Further, as set forth above, in a sufficiency review, the reviewing court considers all admitted evidence, regardless whether it was properly or improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (citations omitted). Therefore, in addition to D.W.'s testimony, we also consider the Facebook iMessages that D.W. testified were messages she and appellant exchanged. Those messages includeddiscussion of the sexual relationship between D.W. and appellant when D.W. was under the age of seventeen. This evidence also supports appellant's conviction.

We find the evidence was sufficient to support appellant's conviction and resolve appellant's first issue against him.

Admission of Facebook Records

In his second issue, appellant contends the trial court abused its discretion in admitting into evidence the Facebook records from D.W.'s and appellant's accounts that contained conversations between the two. Appellant asserts the records were not properly authenticated.

A trial judge has wide discretion in the admission of evidence at trial. Ryder, 514 S.W.3d at 398 (citing Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (op. on reh'g)). We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Id. (citing Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010)). Under an abuse of discretion standard, we do not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. Id. (citation omitted). We will affirm the trial court's ruling if it was correct under any theory of law applicable to the case. Id. (citing State v. Esparza, 413 S.W.3d 81, 82 (Tex. Crim. App. 2013)).

Under Rule of Evidence 901(a), the proponent of proffered evidence "must produce evidence sufficient to support a finding that the item is what the proponent claims it is." TEX. R. EVID. 901(a). In a jury trial, it is the "jury's role ultimately to determine whether an item of evidence is indeed what its proponent claims; the trial court need onlymake the preliminary determination that the proponent of the item has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic." Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)). The trial court's...