Mitchell v. State

CHRISTEN MITCHELL, Appellant

v.THE STATE OF TEXAS, Appellee

No. 05-12-00211-CR

Court of Appeals Fifth District of Texas at Dallas

Dated: July 16, 2013

AFFIRM; and Opinion Filed July 16, 2013.

On Appeal from the 291st Judicial District Court

Dallas County, Texas

Trial Court Cause No. F10-61101-U

OPINION

Before Justices Lang-Miers and Fillmore¹

Opinion by Justice Fillmore

Appellant Christen Mitchell was convicted by a jury of aggravated sexual assault of a child younger than six years of age, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2012), and sentenced to twenty-five years' imprisonment. See id. § 22.021(f)(1). In five points of error, Mitchell contends (1) the evidence is legally insufficient to prove penetration of the child's female sexual organ, (2) a material variance between the pleading and proof of the statutory elements rendered the evidence legally insufficient, (3) an instant message transcript was admitted in evidence in violation of Mitchell's rights under the Confrontation Clause of theSixth Amendment of the United States Constitution, (4) the trial court erred by admitting hearsay evidence as contained in the complainant's medical records, and (5) the trial court erred by instructing the jury it had to unanimously agree Mitchell did not digitally penetrate the complainant's sexual organ before considering whether the State proved the lesser offense of indecency with a child by sexual contact. We affirm the trial court's judgment.

Background

In August 2010, Mitchell lived in an apartment with her two-year old daughter, A.M., and with a roommate, Brittany Kallon. Kallon testified that Mitchell borrowed her laptop computer which had a built-in camera. Utilizing Kallon's computer, on August 26, 2010, Mitchell communicated by computer with an individual identified as Justin Spears (the computer communication). Thereafter, Kallon found a transcript of the communication on her computer. Kallon confronted Mitchell about the transcript, but Mitchell said she did not "do anything" and she was "just typing words." Kallon was not satisfied with the explanation Mitchell gave her about the computer communication. Kallon contacted the police and Child Protective Services (CPS). Kallon allowed the police to take and search her computer.

FBI forensic examiner Donald F. Wills testified regarding his analysis of evidence he received from Detective Rivera of the Dallas Police Department. Willis made a report regarding his analysis of Kallon's computer and the information he obtained from the Skype folder of that computer containing the transcript of the computer communication between Mitchell and Spears. Wills explained that individuals with "Skype" accounts may contact and communicate with one another through computers. If one's computer is equipped with a camera, the individual operating the computer can project her image on the computer of the individual with whom she is engaged in a Skype communication. The text of the August 26, 2010 Skype computer communication between Mitchell and Spears indicated Mitchell had participated in a sexualassault of her daughter, A.M. No information was found enabling identification of the individual who used the name "Spears" during the Skype computer communication.

Wills testified that at the beginning of the computer communication, it appeared Mitchell had the camera activated on the laptop computer she was utilizing and Spears was viewing what Mitchell was doing on camera. It appeared from the transcript of the computer communication that Spears attempted to have Mitchell communicate audibly as one would over a video conference, but later in the computer communication, Mitchell typed text messages to Spears. Wills read from the transcript of the computer communication, and the transcript of the computer communication was also introduced into evidence. Wills testified that Spears indicated certain amounts of money would be paid to Mitchell for things Mitchell did on camera, such as removing her bra and showing her breasts, indicating the "more you do is more I'll pay." In the messaging exchange, Spears asked Mitchell if she had any children, and she indicated she had a two-year-old daughter. Mitchell then had her daughter, A.M., perform acts as instructed by Spears, such as having A.M. pretend to breast feed. Spears instructed Mitchell to have A.M. suck on her breasts to show A.M. how to breast feed. He also requested to see Mitchell and A.M. naked. Spears instructed Mitchell to rub A.M.'s "butt hole" and "pussy hole." Spears instructed Mitchell to lick her finger, and Spears communicated to Mitchell that "obviously" Mitchell could not get her finger deep, but instructed Mitchell to show him how deep Mitchell could insert her finger. Spears communicated, "A tiny bit," and "Deeper is more $$." Spears again instructed Mitchell to lick her finger, get it wet, and "now do it." Mitchell responded, "Ok." Spears then instructed, "Do it. In pussy. Have [A.M.] rub your pussy now." Mitchell responded, "Ok." When Spears instructed Mitchell to have A.M. put her fist in Mitchell's vagina, Mitchell communicated to Spears that A.M. pulled her hand back and would not do that. Despite continued urging from Spears, Mitchell communicated A.M. was two years old anddidn't "grasp the concept." Mitchell wrote, "I tried. She's not going to." Later in the instant text messaging, Spears instructed Mitchell to have A.M. lick Mitchell's vagina. Spears indicated A.M.'s head was in the way of Spears viewing what A.M. was doing. Mitchell then asked whether Spears saw, and Spears responded affirmatively.

Wills also examined emails from a cellular phone, including August 28, 2010 and August 29, 2010 exchanges between Kallon and Mitchell regarding Kallon confronting Mitchell about the computer communication between Mitchell and Spears that Kallon found on her computer. In those phone messages, Mitchell wrote she did not have any remorse, because she did not do anything to A.M. Mitchell wrote to Kallon that she was sorry she "did that" on Kallon's computer, and she did not think "writing" or "portraying that a child was with me" could get her in trouble. Mitchell also wrote to Kallon that she understood how it appeared from reading the transcript of the computer communication with Spears.

Kara Miller, an investigator for CPS, testified she investigated abuse and neglect of children. After CPS employee Casey Arnold conducted her initial investigation regarding this matter and took A.M. into the custody of CPS, Miller conducted further investigation. Miller reviewed the transcript of the computer communication between Mitchell and Spears. Miller then spoke to Mitchell on September 15, 2010. In that interview, Mitchell acknowledged to Miller that she communicated with Spears through a Skype communication on a computer, and that Spears told her she would receive money in connection with the communication. At first, they chatted and Spears asked to see Mitchell's body and what size bra she wore. She took off her clothes and showed Spears her figure. Spears then asked if she had any children and Mitchell told Spears she did. Spears communicated Mitchell would receive money if she "did things" with her child. Mitchell told Miller she made A.M. bite her on her breast, she rubbed A.M.'s vagina with her hand, Mitchell had A.M. rub her vagina, and Mitchell put A.M.'s headdown near Mitchell's vagina. Mitchell told Miller that she and A.M. were naked. Mitchell said she was not able to see Spears during the Skype instant messaging communication.

Detective Rivera testified at trial. Rivera went to Mitchell's apartment in response to a sexual abuse complaint. Rivera was told a two-year-old child had potentially been sexually abused by her mother. Rivera had reason to believe Kallon's computer was involved in the sexual abuse, and Kallon gave consent to have her laptop computer searched. Rivera left the apartment to obtain a search warrant and returned to the apartment later that evening. At that time, he met with Mitchell and asked Mitchell to come to police headquarters. Rivera did not interview A.M., because she was nonverbal due to her age. A.M. was taken into custody by CPS. Mitchell went voluntarily to the police station.

A videotape of Mitchell's police station interview by Rivera was played for the jury. In that video, Mitchell spoke with Rivera about using Kallon's computer to conduct her Skype communication with Spears. Mitchell explained that Spears was not on camera during the computer communication and, instead, only typed his communications. According to Mitchell, A.M. "ain't never had sex like penetrate," "she ain't never been penetrated." Mitchell told Rivera, ""I just, I didn't finger her or nothing. I put my hand by her thing." On the police videotape, Mitchell demonstrated what she was describing and said, "It may have looked, but I didn't finger her." While Mitchell stated, "[a]in't nothing been inserted inside," she specifically told Rivera that, referring to the "lips" of A.M.'s vagina, Mitchell "wasn't deep in there." Mitchell told Rivera her "fingers were on her lips." She demonstrated moving her hand back and forth "up past A.M.'s pee pee hole." Mitchell stated her hand was "down there between [A.M.'s] pee hole" and vagina. She also told Rivera that A.M.'s face was "down there," referring to Mitchell's vagina. Mitchell told Rivera that A.M. bit her breast.

At trial, Mitchell testified that on August 26, 2010, she was living with her daughter, A.M., and her roommate, Kallon. On August 26, 2010, Mitchell participated in a Skype computer communication with an individual identified as Spears. A camera was embedded at the top of the computer Mitchell was using and was activated, and the computer was in Mitchell's lap. Spears communicated his requests for acts to be performed by Mitchell. Mitchell showed Spears her body, and Mitchell took off her top and bra, but she had her underwear on during...