AFFIRMED; Opinion Filed November 30, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00564-CR
ARES WENDELL HIATT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-80604-2018
MEMORANDUM OPINION Before Justices Myers, Nowell, and Evans Opinion by Justice Myers A jury convicted appellant Ares Wendell Hiatt of aggravated sexual assault of
a child and the trial court assessed punishment at thirty-three years in prison. In
three issues, appellant contends his right to a unanimous jury verdict was violated;
the trial court abused its discretion in overruling appellant’s rule 403 objection; and
the evidence is insufficient to support the conviction. We affirm.
BACKGROUND
The complainant’s mother testified that she started dating appellant around
June or July of 2014, and that she and her two daughters moved in with him in
1 September of 2014. At the time, the complainant was almost three years’ old. The
complainant and her older sister shared bunk beds, but when her older sister went to
live with her biological father, the complainant was left alone in the bedroom. In
April of 2016, the complainant’s mother took a job at Target and started working
overnight, from around 10:00 p.m. to 6:00 a.m. or 10:00 a.m. in the morning.
In October of that year, the complainant told her mother appellant had “licked
her pee-pee.” That night, the complainant’s mother confronted appellant and told
him not to come home. When appellant asked why, the complainant’s mother told
him about the complainant’s allegations. Appellant denied the accusations and came
home later that night anyway. The complainant’s mother spent the night in the
complainant’s room. A few weeks after the outcry, the complainant also told her
mother she thought she might have dreamt the sexual abuse. Asked about this on
direct examination, the complainant’s mother testified as follows:
Q. [STATE:] At one point, did she say that she thought it might have just been a dream?
A. A few weeks later.
Q. She said that?
A. Yeah.
Q. And when you heard that she thought it might be a dream, what did you take that as?
A. As an excuse.
Q. Did you think, okay, maybe there is a possibility that this didn’t happen?
–2– A. I didn’t want to believe it, of course, but I had to believe her.
The complainant’s mother arranged for her children to stay with a friend while
she worked nights. This went on for a few weeks or perhaps a month, and during
that time appellant told the complainant’s mother he had allowed the complainant to
watch a pornographic “Princess and the Frog” video, but claimed it was a mistake.
According to what appellant told the complainant’s mother, the complainant had
wanted to watch a movie, “The Princess and the Frog,” so he searched for it on
YouTube. After finding what he thought was the correct video, he handed the tablet
to the complainant. Appellant told the complainant’s mother that he immediately
switched the video to another cartoon when the complainant brought him the tablet
and he noticed it “was a sexual movie.”
The complainant testified that the “Princess and the Frog” video showed the
princess’s “friend . . . licking her pee-pee.” The complainant said she saw this video
only once and that appellant “didn’t mean to” show it to her. She also testified that
appellant switched to a “Scooby-Doo” cartoon when she showed him what was on
the video.
Detective Kristina McClain of the Plano Police Department testified that she
searched the internet and found on Pornhub what she believed was the same video
appellant had played for the complainant. The video was admitted into evidence and
played for the jury.
The complainant’s mother testified that about a month after the complainant’s
–3– outcry, in November of 2016, she allowed her two children to move back into the
house. She said she did this based on a promise from appellant that he would install
video cameras to record what was going on in the house. Eventually, however, the
complainant’s mother discovered the cameras had stopped recording. Then, around
January of 2017, the complainant’s mother found what “looked like modified sex
toys in our bedroom,” and they were stored in a bag that she found in a filing cabinet
next to appellant’s desk. She recognized two of the sex toys as items she and
appellant had used together but did not recognize the “finger-wipe things” or the
“female arousal serum” that were found in the bag along with the other sex toys.
She took the bag to the police. When confronted about the sex toys, appellant
claimed he had used the objects on himself.
The complainant recognized some of the items that were found in the bag. A
black flashlight, for example, was found in the bag, and the complainant testified
appellant would come in her room at night with a black flashlight, take off her
pajamas and underpants, and lick her “pee-pee.” And during her forensic interview
with Eligio Molina of the Collin County Children’s Advocacy Center, the
complainant used a drawing of a girl to identify her “pee-pee” as the part her body
“that she uses to pee.” A toy bullet from a Nerf gun that had been cut off at one end
was also found in the bag, and the complainant testified that she recognized “the toy
bullet dart” because appellant had shown it to her.
The complainant testified that the abuse where appellant licked her “pee-pee”
–4– happened “[l]ots of times” in her bedroom, and it happened once in her mother’s
bedroom. It occurred at night when she slept in the bottom bunk of the bunkbeds
she shared with her sister, and it stopped after she and her sister switched bunks.
The complainant also remembered telling her mother that the abuse was a dream but
testified it was not a dream:
Q. [STATE:] And was it a dream or was it not a dream?
A. It wasn’t a dream because I—after he did that, I kind of felt myself, and it wasn’t a dream.
Q. It wasn’t a dream?
Q. And do you remember being awake or seeing that flashlight sometimes when he would do it to you?
A. Yeah. I would peek a little when I was waking, but he didn’t see me because my eyes were a little open.
Q. Did you not want him to know that you were awake?
Q. And why didn’t you want him to know?
A. Because maybe he would get scared.
The complainant could not identify appellant as the person who assaulted her, but
she testified that she had not seen appellant in a long time and that she was “a little
scared” when she had to look at the table where he was sitting:
Q. [STATE:] . . . . Tell me, before today, had it been a really long time before you’d seen [appellant]?
A. Yes.
–5– Q. And did it make you a little scared when I asked you to look over at his table?
The jury ultimately convicted appellant of aggravated sexual assault of a child,
and the trial court assessed punishment at thirty-three years in prison.
DISCUSSION
1. State’s Election
In his first issue, appellant argues his “right to a unanimous jury was violated
because the trial court admitted additional allegations of sexual abuse” that were not
included in the indictment. Thus, according to appellant, “the jurors could have
relied on any of the multitude of separate similar instances of sexual abuse that the
victim testified to during trial and there would be no manner to determine if they all
agreed on the same one instance of sexual abuse beyond a reasonable doubt.”
As explained by the Court of Criminal Appeals, the general rule is that
“[w]hen one particular act of sexual assault is alleged in the indictment, and more
than one incident of that same act of sexual assault is shown by the evidence, the
State must elect the act upon which it would rely for conviction.” Owings v. State,
541 S.W.3d 144, 150 (Tex. Crim. App. 2017) (internal quotation omitted). “Once
the State rests its case in chief, upon a timely request by the defense, the trial court
must order the State to make an election.” Id.
There are four fundamental principles or purposes that are served by an
election and its accompanying procedures: –6– • to protect the accused from the introduction of extraneous offenses;
• to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty;
• to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred;
• and to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend.
Id. (citing Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006)). The
Court of Criminal Appeals has applied these Phillips factors in conducting a harm
analysis when the State made no election at all. See Owings, 541 S.W.3d at 150–51;
Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006). Moreover, this Court
has held that a trial court’s failure to instruct the jury concerning the State’s election
placed a defendant in the same position as though no election had been made, and
we applied the Phillips constitutional harm standard. Duffey v. State, 326 S.W.3d
627, 631–32 (Tex. App.—Dallas 2009, pet. ref’d). Thus, we will reverse the trial
court’s judgment unless we determine beyond a reasonable doubt that the error did
not contribute to appellant’s conviction. See id. at 632; see also TEX. R. APP. P.
44.2(a).
According to the record in this case, after moving for a directed verdict
defense counsel requested that the State elect the particular incident on which it
would rely. The State announced that “[t]he election we are going to go forward on
–7– is, one time, at night, in [the complainant] and [her sister’s] bedroom, in [the
complainant’s] bed.” After the State made that election, appellant moved for a
mistrial, arguing:
The State alleged one event, and, yet, without giving any notice of any kind, they proceeded to bring in evidence about multiple extraneous incidents, in violation of Code of Criminal Procedure 38[.]37, not giving me 30 days[’] notice, in violation of 404(b), by giving me a notice that did not include any extraneous offenses.
The trial court denied the motion. Appellant rested without presenting any evidence.
The trial court charged the jury as follows:
You must not find the defendant guilty of Aggravated Sexual Assault of a Child unless you all agree that the State has proved that the defendant committed that offense one time at night in [the complainant] and [her sister’s] bedroom in [the complainant’s] bed. Any evidence that the defendant may have committed the alleged offense at any other place is not sufficient for you to find him guilty of Aggravated Sexual Assault of a Child.
You are instructed that any evidence that the defendant may have committed the alleged offense of Aggravated Sexual Assault of a Child at a place other than one time at night in [the complainant] and [her sister’s] bedroom in [the complainant’s] bed cannot be considered for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed. Even then, you may only consider the same in determining the intent, identity, preparation, plan, or opportunity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.
Defense objected to the charge and requested the State to be more specific
about its election and give an age or a time when the offense occurred:
The State has elected one time, in the bedroom at night, in [the complainant] and [her sister’s] bedroom, in [the complainant’s] bed. However, in the evidence that we have heard, [the complainant] has –8– said, first of all, in the forensic video, it happened when she was two. And then later—well, on direct evidence, that she testified to, she said it happened when she was three and four years old. So I would like the State to pick out when this happened, at least by an age, because if we’re talking about one incident and you can differentiate an incident, you need to do so. So we request that they designate, at least, an age.
Defense counsel also argued:
What I would like is this: The description of this one incident at age five came after all of what she claims were these other incidents at ages two, three and four. Therefore, it couldn’t have shown anything—it doesn’t bear on intent, opportunity, motive, or any of the other ideas from which 404(b) comes. Therefore, all the testimony about that record—about that one incident, since it does not satisfy the reasons under 404(b) for having admitted it, it should be stricken from the record and the jury instructed not to consider that one incident.
The trial court overruled the objection. During its closing argument, the State
directed the jury to the portion of the jury charge that set out the State’s election,
telling the jury:
First of all, you will see on Page 3, the top paragraph talks about the State electing to go forward on one particular incident. In this case, we have elected to go forward on one time, at night, in [the complainant] and [her sister’s] bedroom, in [the complainant’s] bed. That is a legal requirement in cases like this of chronic abuse. The State is required to elect to go forward on one particular incident. However, as we all know, we have heard testimony about several incidents, with the same manner and means but several incidents of abuse. The paragraph right below that is going to tell you how you can consider those other incidents and helping you make your decision in this case.
Appellant argues the instruction in the court’s charge was not specific enough
and, as a result, it was as though there was no election at all. The State responds that
the alleged lack of specificity in the jury charge did not contribute to appellant’s
conviction, and with this we agree. Even if we assume—without deciding the –9– issue—that the instruction in the court’s charge was inadequate, the record
establishes beyond a reasonable doubt that the alleged error did not contribute to
appellant’s conviction.
Applying the Phillips factors, see Duffey, 326 S.W.3d at 630, we turn first to
appellant’s need to be protected from the admission of extraneous-offense evidence.
This first purpose may be easily dispensed with in this case because appellant was
not entitled to protection from the admission of evidence of extraneous sexual
offenses committed by him against the complainant. See TEX. CODE CRIM. PROC.
ANN. art. 38.37; Dixon, 201 S.W.3d at 734. Article 38.37 permits the admission of
evidence of these offenses to show the previous and subsequent relationship between
appellant and the complainant. TEX. CODE CRIM. PROC. ANN. art. 38.37; Dixon, 201
S.W.3d at 734–35.
Regarding the second purpose, we conclude there is no risk the jury found
appellant guilty of an offense that was not proven to its satisfaction beyond a
reasonable doubt. See Dixon, 201 S.W.3d at 734–35. The complainant testified
appellant would enter her room with a flashlight, remove her pajama pants and
underpants, and lick her “pee-pee.” This happened “[l]ots of times” during the night
in her bedroom; it happened once in her mother’s bedroom. Similarly, in Dixon the
Court of Criminal Appeals concluded the record established beyond a reasonable
doubt that the error in failing to require the State to elect did not contribute to
appellant’s conviction or punishment where the victim testified the offenses
–10– occurred 99 times in the nighttime and once in the daytime. See id. And just as in
Dixon, the “multiple offenses” here were all recounted by the same source—the
child complainant. See id. at 735. Thus, as the Dixon court concluded, “[t]his case
is not concerned with evidence of different activities from different sources that a
jury might perceive to ‘add up’ to the defendant being guilty even though no
individual offense was proven beyond a reasonable doubt.” Id. Additionally, “the
child complainant did not testify about a number of varied incidents with differing
details that might have incrementally added to the idea that the defendant must have
done something to provoke the plethora of stories about his activities.” Id. Instead,
the complainant described one sequence of events and testified that this sequence
happened “[l]ots of times” during the night in her bedroom and only once in her
mother’s bedroom. See id. “Whether the sequence of events was alleged to have
occurred one, ten, fifty, or one hundred times does not by itself impact the
believability of the child’s story.” Id.
We next determine whether, absent a proper instruction, we can be sure the
jury verdict was unanimously directed at the single offense elected. The only
distinguishing detail regarding the occasions when appellant licked the
complainant’s “pee-pee” is that it occurred once in her mother’s bedroom—the other
incidents took place in her bedroom. Accordingly, we perceive no risk the jury could
have reached a non-unanimous verdict in this case. Based on the record in this case,
anyone who believed the complainant’s allegations would have concluded the
–11– offense occurred in her bedroom. See id. at 735 (“The nighttime scenario being
typical (ninety-nine out of one hundred), it is obvious from this record that anyone
who believed the complainant’s allegations in any respect would believe that [the]
sexual assaults occurred at night.”).
As for the question of adequate notice, appellant’s defense was the same for
each incident of sexual abuse—a categorical denial. He did not have different
explanations for the different incidents, nor did he offer an alibi. And as we have
already discussed, the only distinction between the incidents of sexual abuse is that
one occurred in her mother’s bedroom; the others happened in her bedroom.
Therefore, appellant’s defense was not inhibited by any error that may have occurred
and he was not deprived of proper notice or an opportunity to defend himself. See
Owings, 541 S.W.3d at 153; Dixon, 201 S.W.3d at 736.
Based on our review of the record, we conclude that, even if we assume error
in failing to adequately instruct the jury concerning the elected offense in this case,
the record establishes beyond a reasonable doubt that the error did not contribute to
appellant’s conviction. We overrule appellant’s first issue.
2. Admissibility of Evidence
In his second issue, appellant contends the trial court abused its discretion in
overruling appellant’s rule 403 objection “to the admission of sex toys and a
pornographic cartoon parody video during the guilt/innocence phase of the trial,”
–12– and that “[t]his evidence was more prejudicial than probative and unfairly prejudiced
the jury against Appellant.”
To preserve error for appeal, a party must make a timely objection that states
the grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P.
33.1(a)(1)(A). The party must object each time inadmissible evidence is offered or
obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.
2004); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Moreover, the
argument on appeal must comport with the objection made at trial. See Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
Appellant argues he objected to the admission of the sex toys that were found
in the bag discovered by the complainant’s mother (and that she handed over to the
police) under rule 403, and that the trial court overruled the objection. He fails,
however, to direct this Court to where in the record this argument was made and
ruled on by the trial court. Our review of the record shows his argument was not
preserved.
In a hearing held outside the jury’s presence, the parties discussed the
redaction of a video of appellant’s interview with police. During the hearing,
appellant requested that any mention of the sex toys be redacted because they were
not relevant and were inadmissible under rules 403 and 404(b). But appellant’s
argument was made as part of a motion to redact and concerned what should be
–13– redacted from the video—it was not expanded to include the admission of evidence
regarding the sex toys themselves. And even if this could be construed as a broader
objection to the admission of all evidence regarding the sex toys, appellant failed to
object that the evidence was inadmissible under rule 403 when that evidence (State’s
exhibits 3 through 22) was offered or when it was discussed in testimony, nor did he
obtain a running objection. Appellant instead objected to the admission of the bag
that contained the sex toys, and photographs of what was in the bag, based on a
failure to authenticate and relevance, and he made no rule 403 objection when
Detective Kristina McClain of the Plano Police Department and the complainant’s
mother testified about the bag’s contents. A contention based on rule 403 is not
preserved by a relevance objection. See, e.g., Sony v. State, 307 S.W.3d 348, 355–
56 (Tex. App.—San Antonio 2009, no pet.) (relevance objection to photographs at
trial did not preserve appellate argument based on rule 403); Phifer v. State, No. 05-
14-01411-CR, 2016 WL 772737, at *4 (Tex. App.—Dallas Feb. 29, 2016, no pet.)
(mem. op., not designated for publication) (“Neither a contention based on rule
404(b) nor an argument under rule 403 was preserved by [appellant’s] relevance
objection.”); Gamble v. State, No. 02-07-174-CR, 2009 WL 806879, at *7 (Tex.
App.––Fort Worth March 27, 2009, pet. ref’d) (mem. op., not designated for
publication) (argument that admission of evidence violated rules 403, 404, and 405
not preserved because appellant did not so object at trial). We conclude appellant
has failed to preserve his argument that the sex toys were inadmissible under rule
–14– 403 for appellant review.
We reach a similar conclusion regarding appellant’s argument that the
probative value of the pornographic “Princess and the Frog” video was outweighed
by the danger of unfair prejudice because (according to appellant’s argument) both
appellant and the complainant agreed it was a mistake to have her view the cartoon
and it was promptly “shut off” after it was discovered to be pornographic.
Appellant claims he objected to the admission of the “Princess and the Frog”
video under rule 403, and that the trial court overruled this objection, but we again
note that he has not directed us to any place in the record where such an argument
was made and ruled on by the trial court. Indeed, our review of the record shows his
argument was not preserved. At the time the actual video was offered into evidence,
appellant’s only objection was that it was not properly authenticated. Hence, the
argument on appeal does not comport with the trial objection, and appellant has not
preserved his complaint for appellate review. We further note that appellant made
no rule 403 objection when the complainant and her mother testified about the video.
Appellant has, consequently, failed to preserve any argument that the evidence was
inadmissible under rule 403. We overrule appellant’s second issue.
3. Sufficiency of the Evidence
In his third issue, appellant argues the child complainant’s testimony was not
credible because “she was unable to detail whether there was one offense or many,
nor was she able to identify the appellant as her abuser during the trial”; therefore,
–15– “the trial court abused its discretion by failing to order an instructed verdict.”
To begin with, any error in the denial of a motion for an instructed verdict is
treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937
S.W.2d 479, 482 (Tex. Crim. App. 1996); Segovia v. State, 543 S.W.3d 497, 502 n.
2 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Thus, in determining whether
the evidence is sufficient to support a conviction, we consider all the evidence in the
light most favorable to the verdict and determine whether, based on that evidence
and reasonable inferences therefrom, a factfinder could have found the essential
elements of the charged offense were proven beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex.
Crim. App. 2011). The factfinder must resolve conflicts in the testimony, weigh the
evidence, and draw reasonable inferences from basic facts. Murray v. State, 457
S.W.3d 446, 448 (Tex. Crim. App. 2015) (citing Jackson, 443 U.S. at 319). We
presume the factfinder resolved any conflicting inferences in favor of the verdict,
and we defer to that resolution. See Jackson, 443 U.S. at 326; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We also defer to the factfinder’s
evaluation of the credibility and weight of the evidence. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The standard is the same for both direct
and circumstantial evidence. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012).
A child victim’s testimony alone is sufficient to support a conviction for
–16– aggravated sexual assault of a child. See, e.g., Revels v. State, 334 S.W.3d 46, 52
(Tex. App.—Dallas 2008, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—
Dallas 2002, pet. ref’d). Also, a child victim’s outcry statement alone can sustain
the conviction. Tear, 74 S.W.3d at 560. There is no requirement that the victim’s
testimony be corroborated by medical or physical evidence. See Newby v. State, 252
S.W.3d 431, 437 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d); Robinson v.
State, No. 05-09-01329-CR, 2011 WL 168736, at *4 (Tex. App.—Dallas Jan. 20,
2011, no pet.) (mem. op., not designated for publication).
As charged in the indictment, appellant was accused of intentionally and
knowingly causing the female sexual organ of the complainant, then a child younger
than six years of age, to contact appellant’s mouth. See TEX. PENAL CODE ANN. §
22.021(a)(1)(A). Trial testimony showed that the complainant said appellant would
come into her room at night with a black flashlight, remove her pajamas and
underpants, and lick her “pee-pee.” The complainant testified this happened “[l]ots
of times” during the night in her bedroom; it happened once in her mother’s
bedroom. This testimony alone is sufficient to support appellant’s conviction. See,
e.g., Revels, 334 S.W.3d at 52; Tear, 74 S.W.3d at 560.
Appellant argues the evidence was insufficient because the complainant
responded “I don’t know” to several questions and was unable to identify appellant
in court as her abuser. But the record also shows that the complainant testified
appellant came into her room at night, removed her clothing, and licked her “pee-
–17– pee.” Additionally, although the complainant testified that she did not see appellant
in the courtroom, she testified that she had not seen appellant in a long time and was
scared when she had to look at the table where he was sitting. The jury was the sole
judge of the weight and credibility of the evidence and it was free to accept or reject
the evidence presented by either side. See, e.g., Wesbrook v. State, 29 S.W.3d 103,
111 (Tex. Crim. App. 2000). Appellant also contends the evidence was insufficient
because the forensic interviewer testified that, as an expert, she was able to judge the
complainant’s body language and communication. Appellant argues this was a
“dubious claim” that is not supported by the record. Again, however, the jury was
free to accept or reject any and all evidence presented by either side. See id.
Accordingly, we conclude the evidence is sufficient to support the conviction, and
we overrule appellant’s third issue.
We affirm the trial court’s judgment.
/Lana Myers/ LANA MYERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 190564F.U05
–18– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ARES WENDELL HIATT, On Appeal from the 366th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 366-80604- No. 05-19-00564-CR V. 2018. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Nowell and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of November, 2020.
–19–