Cornell Witcher v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 4, 2022
• Docket: 06-20-00040-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-20-00040-CR

CORNELL WITCHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 18F1367-202

Before Morriss, C.J., Stevens and Carter,* JJ. Memorandum Opinion on Remand by Chief Justice Morriss

________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION ON REMAND

As a result of Cornell Witcher’s repeated sexual abuse of Mary1 when she was ten or

eleven years old, a Bowie County jury convicted Witcher of continuous sexual abuse of a young

child,2 and Witcher was sentenced to life imprisonment and assessed a $10,000.00 fine. On

appeal, Witcher challenged the sufficiency of the evidence supporting his conviction. We found

that the evidence was legally insufficient to support the conviction because, from the evidence,

we concluded that the jury could only speculate that the abuse began thirty or more days before

the abuse ended. As a result, we reversed his conviction for continuous sexual abuse of a young

child and remanded the case to the trial court for a new trial on the lesser-included offenses of

aggravated sexual assault and indecency with a child. Witcher v. State, No. 06-20-00040-CR,

2020 WL 7483953, at *4–5 (Tex. App.—Texarkana Dec. 21, 2020) (mem. op., not designated

for publication), rev’d, No. PD-00034-21, 2022 WL 224269 (Tex. Crim. App. Jan. 26, 2022).

The Texas Court of Criminal Appeals granted the State’s petition for discretionary

review, found that a jury could have rationally inferred from the evidence, without speculation,

that the abuse began thirty or more days before the abuse ended, reversed our judgment, and

remanded the case to this Court to correct an error that we noted in the trial court’s judgment.

Witcher v. State, No. PD-0034-21, 2022 WL 224269, at *2 n.13 (Tex. Crim. App. Jan. 26, 2022).

Based on the opinion of the Texas Court of Criminal Appeals, we overrule Witcher’s sole issue

attacking the sufficiency of the evidence.

1 We use pseudonyms to refer to the minor victim and her relatives. See TEX. R. APP. P. 9.10. 2 See TEX. PENAL CODE ANN. § 21.02(b) (Supp.). 2 Although we will affirm the trial court’s judgment, the judgment should be first modified

to accurately reflect the offense for which Witcher was convicted and the correct statute of

offense. We have the authority to modify the judgment to make the record speak the truth, even

if a party does not raise such a problem. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607,

609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana

2009, no pet.). “Our authority to reform incorrect judgments is not dependent on the request of

any party, nor does it turn on a question of whether a party has or has not objected in trial court;

we may act sua sponte and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing

Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, writ ref’d)); see French, 830

S.W.2d at 609.

In this case, Witcher was indicted for and convicted of continuous sexual abuse of a

young child as set forth in Section 21.02(b) of the Texas Penal Code. See TEX. PENAL CODE

ANN. § 21.02(b). However, the trial court’s amended judgment of conviction, under “Offense for

which Defendant Convicted,” recites “AGG SEXUAL ASSAULT CHILD,” and under “Statute

for Offense,” recites “22.021(a)(2)(B).”

3 For that reason, we modify the trial court’s judgment to reflect the offense for which the

defendant was convicted as “continuous sexual abuse of a young child” and to reflect the statute

of offense as Section 21.02(b) of the Texas Penal Code.

We affirm the trial court’s judgment, as modified.

Josh R. Morriss, III Chief Justice

Submitted: February 22, 2022 Decided: March 4, 2022

Do Not Publish