Sims v. State, 04-17-00655-CR

Benjamin SIMS, Appellant v. The STATE of Texas, Appellee

No. 04-17-00655-CR

Fourth Court of Appeals San Antonio, Texas

December 5, 2018

MEMORANDUM OPINION

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2016CR2121

Honorable Jefferson Moore, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

AFFIRMED

A jury convicted Benjamin Sims of two counts of sexual assault of a child. The trial court sentenced Sims to concurrent twenty-year prison terms and signed a judgment of conviction for each count. Sims appealed. In three points of error, Sims complains about (1) the sufficiency of the evidence and venue, (2) the trial court's evidentiary rulings, and (3) trial counsel's effectiveness. We affirm.

BACKGROUND

On March 2, 2016, a grand jury in Bexar County, Texas, indicted Sims for three counts of sexual assault of a child. The allegations in each count of the indictment were identical, except count one alleged the offense occurred "on or about" April 1, 2015, count two alleged the offense occurred "on or about" May 1, 2015, and count three alleged the offense occurred "on or about" May 30, 2015. Each count alleged that the complainant, Nora,¹ was a child younger than the age of seventeen and not Sims's spouse, and that Sims intentionally and knowingly caused his sexual organ to penetrate Nora's sexual organ. Thus, all counts of the indictment alleged that Sims committed the offense of sexual assault by causing his sexual organ to penetrate Nora's sexual organ.

Sims pled not guilty to all counts.

The case was tried to a jury. In her trial testimony, Nora explained that she lived in a house in San Antonio, Texas, with her grandmother, who was her guardian. Sims, who sometimes lived in the same house, was her grandmother's brother. Nora described three incidents of sexual abuse by Sims, all of which occurred when she was sixteen years old. Of the three incidents, only two involved Sims penetrating Nora's sexual organ with his sexual organ.

The jury also heard testimony from other witnesses. A school district police officer, Robert O'Callaghan, testified he knew Nora because she was a student in the school district where he worked. O'Callaghan had told Nora that she could call him if she was ever in trouble. On August 18, 2015, at around 10:00 p.m., Nora called O'Callaghan and told him she had been sexually abused by Sims. O'Callaghan was the first person Nora told about the sexual abuse. Nora explained to O'Callaghan that she wanted to tell her grandmother about the sexual abuse, but she was afraid her grandmother would "flip out." In response, O'Callaghan went to Nora's house, where he encouraged Nora to tell her grandmother about the sexual abuse. When Nora was unable to do so, O'Callaghan informed the grandmother about the sexual abuse.

Nora's grandmother testified that after learning about the sexual abuse, she called Sims on her cell phone and told him about Nora's allegations. Sims did not deny the allegations. The grandmother told Sims he needed to apologize to Nora for what he had done to her. Sims responded by saying that he had intended to call Nora and tell her he was sorry for what he had done. The grandmother then handed her phone to Nora, and Sims told Nora he was sorry for what he had done to her. Nora recorded the conversation between her and Sims on her cell phone. Nora could not recall if she ended the recording before her conversation with Sims was over; however, her grandmother testified that Nora recorded the entire conversation between Nora and Sims.

The San Antonio Police Department detective who investigated the case, David Munoz, testified that he first interviewed Nora on August 27, 2015. During this interview, Nora played the audio recording she had made of her conversation with Sims. Munoz made an audio recording of Nora's audio recording of her conversation with Sims.

The audio recording made by Munoz was admitted into evidence.

After all the evidence was presented, the State waived count three of the indictment, presumably because Nora had testified that one of the incidents did not involve organ-to-organ penetration and occurred outside of Bexar County. The jury found Sims guilty on both count one and count two of the indictment. The parties reached an agreement as to punishment. In accordance with the parties' agreement, the trial court sentenced Sims to concurrent twenty-year prison terms. Sims appealed.

SUFFICIENCY OF THE EVIDENCE AND VENUE

In his first point of error, Sims combines arguments about two separate issues: the sufficiency of the evidence and venue. Sims argues count one must be reversed because the evidence supporting this count did not show organ-to-organ penetration. Sims further argues count two must be reversed because the evidence did not show that this offense occurred in Bexar County, Texas. Based on these arguments, Sims claims he is entitled to a judgment of acquittal on count one and a new trial on count two. We begin by addressing Sims's sufficiency arguments and then turn to his venue arguments.

Sufficiency of the Evidence

"The standard of review for determining the [] sufficiency of the evidence to support a conviction is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (emphasis in original). In applying this standard, we defer to the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. We consider the cumulative force of all the evidence. Id. Our deference to the jury extends to the inferences drawn from the evidence provided the inferences are reasonable ones supported by the evidence. Id.

To determine if the State met its burden to prove Sims's guilt beyond a reasonable doubt, we compare the elements of the offense as defined by the hypothetically correct jury charge to the evidence adduced at trial. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Id.

"An 'element' is a fact that is legally required for a fact finder to convict a person of a substantive offense." Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). The "elements" of an offense include the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. TEX. PENAL CODE ANN. § 1.07(a)(22). Venue is not an element of an offense and a "failure to prove venue does not implicate sufficiency of the evidence." Schmutz, 440 S.W.3d at 35. Therefore, the previously-mentioned sufficiency standard of review does not apply to Sims's venue argument. See id.

A person commits the offense of sexual assault of a child if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A). The "on or about" language in an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sanchez v. State, 400 S.W.3d 595, 600 (Tex. Crim. App. 2013).

At trial, Nora testified that the first incident of sexual abuse occurred when Nora and Sims were staying in a trailer in Buna, Texas. According to Nora, Sims put his mouth on her vaginal area. The second incident occurred when Nora was helping Sims, who was a truck driver, clean out his eighteen-wheeler. Sims drove Nora to a truck stop about fifteen minutes away from her grandmother's house in San Antonio. Nora and Sims smoked marijuana. Nora then went to lie on a small bed in the back of the truck and Sims joined her. While they lay on the bed, Sims put his penis inside Nora's vagina. Nora recalled that she had told a police officer that this incident occurred at the Flying J Truck Stop, which was located in San Antonio, Bexar County, Texas. The third incident occurred at Nora's grandmother's house in San Antonio, Bexar County, Texas. After Nora and Sims smoked marijuana in the garage, she went to lie on a couch in the living room and Sims joined her. Again, Sims put his penis inside Nora's vagina. Nora testified that all three incidents occurred between February 2015 and August 2015. Although Nora did not remember the month each of the incidents happened, she did remember that the third incident happened weeks after the second incident.

On cross-examination, Nora claimed the first incident occurred in Buna or Beaumont, Texas, neither of which are in Bexar County, Texas. Nora thought the first incident had occurred during the week of spring break, but she was not certain. Nora did not remember how much time had elapsed between the first incident and the second incident; it may have been weeks. Nora equivocated about whether the second incident occurred at the Flying J Truck Stop in Bexar County, stating "now that I'm starting to think about it more, I'm thinking it was at the Shell station." Nora did not testify about the city or county where the Shell station was located.

Sims further argues the evidence was insufficient to support the jury's verdict on count one because the first incident of sexual abuse described in Nora's testimony did not involve organ-to-organ penetration and occurred in Buna or...