David Monroe Smitherman v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 10, 2022
• Docket: 05-21-00196-CR
• Status: Published

Opinion

Affirmed and Opinion Filed June 10, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00196-CR No. 05-21-00197-CR

DAVID MONROE SMITHERMAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause Nos. 20-10343-422-F, 20-10344-422-F

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Smith Opinion by Justice Smith A jury found appellant David Monroe Smitherman guilty of unlawful restraint

of a child less than seventeen years of age and criminal solicitation of a minor. He

was sentenced to two years in state jail and fifteen years’ confinement in the Texas

Department of Corrections, to run currently. In two issues, he challenges the

sufficiency of the evidence supporting his unlawful restraint conviction and the

sufficiency of the corroborating evidence supporting his criminal solicitation

conviction. We affirm the trial court’s judgments. Background

Appellant worked as a handyman for Jim Harris. Jim lived on property owned

by his sister, Kleta Harris, who lived in a separate home on the same property.

Appellant spent almost every day on the property doing various projects. Kleta had

known appellant for approximately ten years and trusted him to the point that she

told her thirteen-year-old granddaughter, Ella,1 if she needed anything, she could ask

appellant.

On May 15, 2020, Ella and her younger cousin wanted to ride a golf cart

around the property. Kleta told them to ask Jim’s permission. As soon as they

neared Jim’s house, appellant walked out the front door. They asked appellant if

they could ride the golf cart, and he said he needed to jump the battery.

After he hooked the cables, he asked Ella to get in the truck and turn it on. As

she sat in the driver’s seat, appellant approached the driver’s side door. While

holding a beer, appellant leaned in the window and asked her a “bunch of questions”

that made her uncomfortable. He asked her if she ever touched herself, if she knew

about orgasms, and if she wanted him to give her one. She said appellant threatened

to blackmail her if she did not let him touch her. He continued to repeat the questions

and threaten blackmail about six or seven times. She got out of the truck and left

because she did not want her cousin to hear.

1 Ella was the pseudonym used at trial for the complainant.

–2– Once Ella left the truck and walked away, appellant left. Ella and her cousin

then went to the RV on the property, which had been converted into a playhouse, to

cool off. They hung out together for a little while and then Ella took her cousin back

home. Ella returned to the RV alone.

Shortly thereafter, appellant knocked on the door and immediately walked in.

Ella was sitting on the couch. Appellant apologized for what he said at the truck and

wanted to talk with her. He sat down “pretty close” next to her on the small couch.

He touched her thigh and her face and said, “If you want me to stop or you get

grossed out, just tell me to stop.” He continued to say vulgar things, including that

he slept with her mother and performed oral sex on her, which Ella did not believe.

She said, “He was like, yeah, I did. And then he laid his hand on my thigh. And I

moved it and I told him not to touch me.”

After Ella hit his hand away, she stood up and tried to walk away. “He

grabbed my arm and told me if I left and went and told on him, he was gonna tell

them about the vape and tell them I was lying.”

Three days earlier, appellant caught Ella with a vape pen. She was scared that

if appellant told her mother or Kleta about vaping, she would get in trouble.

Ella said appellant grabbed her arm enough to stop her and prevent her from

leaving. “[H]e grabbed it and kind of pulled me away from the door, and then he let

go and was talking to me. And then I just sat down.” When asked if she felt like

she could leave, she answered, “I knew I could leave but I didn’t want to get in

–3– trouble, so I didn’t.” But she emphasized that when he grabbed her arm, he

simultaneously brought up blackmailing her. Because he threatened to tell on her if

she left, she sat back down.

Appellant continued to talk about sex and blackmailing her. Ella stayed in the

chair because appellant was standing up. She eventually got mad, stood up, and

started screaming at him.

At that time, appellant was standing with one foot down the stair and one foot

up on the floor. She was standing between the passenger and driver’s seats. She

yelled at him to leave and never come around the property again. Appellant told her

to “stop acting crazy” and touched her face. She punched him and said she would

call the police if he did not leave. Appellant made another vulgar remark, slammed

the door, and left.

Ella called 9-1-1 and told the operator about vaping because she thought if she

told the operator, “then he [couldn’t] tell on me and I couldn’t get in trouble.” She

did not remember the details of the call, but knew she told the operator that she told

appellant to get out and he would not leave.

Holly Deatherage lived on the property and had known the family for about

ten years. She testified that appellant had been drinking that afternoon. She noticed

appellant’s truck at Jim’s house, and from her perspective, she could see the RV.

Holly heard a female scream from inside the RV, and then the door slammed.

She saw appellant walking from the RV. She described the look on his face as

–4– “blank,” and he seemed “kind of intoxicated.” She asked him who was in the RV,

and he said, “No one.” He then got in his truck and left.

Holly ran to the RV, opened the door, and saw Ella on the couch screaming

into the phone that “he needs to leave me alone.” She was crying and hysterical to

the point she could barely talk. Based on what Holly heard and saw, she believed

something happened inside the RV. Holly heard Ella tell the 9-1-1 operator that

appellant said vulgar things and touched her. Holly said she was going to call Kleta,

which upset Ella even more. Holly called Kleta, who arrived within minutes.

When Kleta arrived, she found Ella distraught and excited. Kleta tried to calm

Ella down as Ella talked to the 9-1-1 operator. Kleta eventually took the phone from

Ella because it was difficult to understand her due to her emotional state. Although

Kleta did not see the incident, based on Ella’s demeanor, she believed something

serious happened inside the RV.

Ella participated in a forensic interview on May 21, 2020. The interviewer

described Ella’s demeanor as “very matter of fact . . . very articulate . . . and she

answered the questions genuinely.” The interviewer explained to the jury common

techniques that perpetrators use when grooming a child for sexual abuse, which

included gaining the family’s trust, stretching boundaries with the child, and

blackmailing the child to accomplish the abuse.

–5– After hearing the evidence, the jury convicted appellant of unlawful restraint

of a child less than seventeen years of age and criminal solicitation of a minor. This

appeal followed.

Unlawful Restraint

Appellant argues the evidence was legally insufficient to prove he restrained

Ella. He does not challenge the mens rea of the offense, but instead only whether

Ella was “confined.” The State responds the evidence was sufficient to support his

conviction.

In reviewing a legal sufficiency challenge, we examine the evidence to

determine whether any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

319 (1979). We review all the evidence in the light most favorable to the verdict

and assume the trier of fact resolved conflicts in the testimony, weighed the

evidence, and drew reasonable inferences supporting the verdict. See Rollerson v.

State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).

A person commits an offense if he intentionally or knowingly restrains

another person. TEX. PENAL CODE ANN. § 20.02(a). Chapter 20 of the Texas Penal

Code defines “restrain” to mean “to restrict a person’s movements without consent,

so as to interfere substantially with the person’s liberty, by moving the person from

one place to another or by confining the person.” Id. § 20.01(1); see Dunn v. State,

No. 02-17-00206-CR, 2018 WL 4022503, at *7 n.9 (Tex. App.—Fort Worth Aug.

–6– 23, 2018, pet. ref’d). Restraint is “without consent” if it is accomplished by force,

intimidation, or deception. TEX. PENAL CODE ANN. § 20.01(1)(A). There is no

specific time requirement for determining whether a restraint has taken place. See

Hines v. State, 75 S.W.3d 444, 447–48 (Tex. Crim. App. 2002); see also Duffy v.

State, No. 05-19-01247-CR, 2021 WL 4988318, at *4 (Tex. App.—Dallas Oct. 27,

2021, no pet.) (mem. op., not designated for publication). Because Ella was younger

than fourteen years old, she was incapable of giving consent to be restrained. See

TEX. PENAL CODE ANN. § 20.01(1)(B)(i); see also Phifer v. State, No. 05-14-01411-

CR, 2016 WL 772737, at *1 (Tex. App.—Dallas Feb. 29, 2016, no pet.) (mem. op.,

not designated for publication).

Appellant acknowledges he had two contacts with Ella: one in his truck and

the second in the RV. He argues that he never restrained Ella, and he did nothing to

prevent her from exiting either vehicle. We disagree.

The evidence shows that appellant entered the RV without being invited and

sat close to Ella. He touched her face and her mid-thigh after previously discussing

sex with her. She hit appellant’s hand away, stood up, and tried to walk away.

She testified, “He grabbed my arm and told me if I left and went and told on

him, he was gonna tell them about the vape and tell them I was lying.” Appellant

grabbed her arm enough to stop her and prevent her from leaving.

When asked if she felt like she could leave, she answered, “I knew I could

leave but I didn’t want to get in trouble, so I didn’t.” To the extent appellant relies

–7– on this testimony to indicate he did not restrain Ella, we reject his argument. A

reasonable jury could determine that by grabbing Ella’s arm while indicating he

would blackmail her by exposing her vaping, appellant intimidated her into staying.

See TEX. PENAL CODE ANN. § 21.01(1)(B)(i) (restraint is without consent if

accomplished by intimidation); see also Immicke v. State, No. 10-11-00453-CR,

2013 WL1188786, at *1 (Tex. App.—Waco Mar. 21, 2013, no pet.) (mem. op., not

designated for publication) (relying on Encarta Dictionary, which defines

“intimidate” as “to frighten somebody into doing or not doing something”). Ella

testified that appellant continued talking about sex and blackmailing her. She stayed

in the chair because appellant was standing up. A reasonable jury could find that

such behavior frightened her into staying inside the RV.

Further, because there is no specific time period for determining whether a

restraint occurred, the jury could reasonably consider appellant’s earlier behavior

with Ella at the truck as intimidation that carried over to their later interaction in the

RV. Thus, we conclude that the evidence, when viewed in the light most favorable

to the verdict, is sufficient for a reasonable jury to conclude the surrounding

circumstances substantially interfered with Ella’s liberty thereby resulting in an

unlawful restraint. See TEX. PENAL CODE ANN. § 21.01(1)(B)(i); see also Hines v.

State, 75 S.W.3d 444, 447–48 (Tex. Crim. App. 2002) (“It is up to the jury to

distinguish between those situations in which a substantial interference with the

–8– victim’s liberty has taken place and those situations in which a slight interference

has taken place.”). Appellant’s first issue is overruled.

Criminal Solicitation

Appellant argues in his second issue that the evidence is legally insufficient

to support his conviction for criminal solicitation of a minor. The State indicted

appellant for criminal solicitation with intent to commit aggravated sexual assault

by causing the penetration of Ella’s sexual organ by his sexual organ or by causing

Ella’s sexual organ to contact appellant’s mouth. The State responds that the

evidence is sufficient to support his conviction.

The offense of criminal solicitation of a minor occurs when a person, with the

intent that sexual assault or sexual performance be committed, requests, commands,

or attempts to induce a minor to engage in specific conduct, that under the

circumstances surrounding the actor’s conduct as the actor believes them to be,

would make the minor a party to the commission of sexual assault or sexual

performance. See TEX. PENAL CODE ANN. § 15.031; see also Ashcraft v. State, No.

03-06-00310-CR, 2008 WL 2938733, at *8 (Tex. App.—Austin July 31, 2008, no

pet.) (mem. op., not designated for publication). No completed act of sexual contact

is required to be proved; the prohibited conduct is the solicitation. See Minze v.

State, No. 10-18-00333-CR, 2020 WL 5241211, at *4 (Tex. App.—Waco Aug. 31,

2020, pet. ref’d) (mem. op., not designated for publication). However, a person may

not be convicted of criminal solicitation of a minor on the uncorroborated testimony

–9– of the minor allegedly solicited “unless the solicitation is made under circumstances

strongly corroborative of both the solicitation itself and the actor’s intent that the

minor act on the solicitation.” See TEX. PENAL CODE ANN. § 15.031(c).

The corroboration required under the criminal solicitation statute is analogous

to the corroboration requirement found in the accomplice-witness statute. Lumsden

v. State, 564 S.W.3d 858, 875 (Tex. App.—Fort Worth 2018, pet. ref’d) (citing TEX.

CODE CRIM. PROC. ANN. art. 38.14). Due to the similarities between these two

statutes, the test for evaluating the sufficiency of the corroboration evidence is the

same under each. Id. In assessing the sufficiency of the evidence corroborating the

victim’s testimony, the test requires that we eliminate the minor victim’s testimony

from consideration and then determine whether there is other incriminating evidence

tending to connect the accused with the crime. Id. This standard presents a low

hurdle for the State because the evidence need not directly link the accused with the

crime or be sufficient to establish guilt. Id.

Appellant argues that after eliminating Ella’s testimony, there is no evidence

tending to connect him to the offense. He claims the only evidence before the jury

was his presence at the scene and Ella’s emotional state, neither of which is

sufficient. See, e.g., Sheffield v. State, 847 S.W.2d 251, 259 (Tex. App.—Tyler

1992, pet. ref’d) (mere showing that accused and minor were together shortly before

or after commission of offense may not be sufficient corroboration). Eliminating

Ella’s testimony from consideration, we conclude that the State presented other

–10– evidence tending to connect appellant with the offense of solicitation of a minor

thereby meeting its “low hurdle” for conviction.

The record shows that Holly heard a female scream from inside the RV, and

then the door slammed. She saw appellant walking from the RV with a “blank” face,

and he seemed “kind of intoxicated.” She asked him who was in the RV, and he

said, “No one.” He then left in his truck.

Holly ran to the RV, opened the door, and saw Ella on the couch screaming

into the phone that “he needs to leave me alone.” She was crying and hysterical to

the point she could barely talk. Based on what Holly heard and saw, she believed

something happened inside the RV. Holly heard Ella tell the 9-1-1 operator that

appellant said vulgar things and touched her. Holly did not see anyone else enter or

leave the RV other than appellant.

Kleta testified that when she arrived at the RV, Ella was emotional to the point

of almost hyperventilating. Kleta had never seen her so upset. Although Kleta did

not see the incident, based on Ella’s demeanor, she believed something serious

happened.

When Ella called 9-1-1, she almost immediately admitted vaping, which

corroborated her trial testimony that appellant attempted to blackmail her when she

refused his sexual advances. Further, the forensic interviewer explained grooming

behaviors in perpetrators. Blackmail is a common technique. She explained that if

a child did not comply with a perpetrator’s demands, then a perpetrator often

–11– changed tactics, acted more harshly, and resorted to threats to get what he wanted

from the victim.

The forensic interviewer explained another important part of grooming was

gaining a family’s trust. Once a perpetrator gained trust, then the family was less

likely to question a perpetrator’s access to the child. Here, the jury heard testimony

that appellant had known the family for about a decade and spent almost every day

working on the property, and therefore, had access to Ella. Kleta trusted appellant

to the point that she told Ella if she needed anything, she could ask him.

The jury was free to believe the witnesses’ testimony and permitted to draw

reasonable inferences from the evidence. We must defer to the jury as the finder of

fact. See Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004). After

eliminating Ella’s testimony and viewing the remaining evidence in the light most

favorable to the verdict, we conclude the State presented sufficiently corroborated

evidence tending to link appellant with the crime of solicitation. We overrule

appellant’s second issue.

–12– Conclusion

Having considered and overruled appellant’s arguments, we affirm the trial

court’s judgments.

/Craig Smith/ 210196f.u05 CRAIG SMITH 210197f.u05 JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b)

–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAVID MONROE SMITHERMAN, On Appeal from the 422nd Judicial Appellant District Court, Kaufman County, Texas No. 05-21-00196-CR V. Trial Court Cause No. 20-10343-422- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Smith. Justices Schenck and Osborne participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 10th day of June, 2022.

–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAVID MONROE SMITHERMAN, On Appeal from the 422nd Judicial Appellant District Court, Kaufman County, Texas No. 05-21-00197-CR V. Trial Court Cause No. 20-10344-422- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Smith. Justices Schenck and Osborne participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–15–