Johnathan Lewis Helm v. State

• Court: Court of Appeals of Texas
• Decided: June 4, 2015
• Docket: 02-14-00043-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00043-CR

JOHNATHAN LEWIS HELM APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY TRIAL COURT NO. 1276053D

MEMORANDUM OPINION1

A jury found Appellant guilty of sexual assault of a child under seventeen

and of prohibited sexual conduct and assessed his punishment at twenty years’

and ten years’ imprisonment, respectively. The trial court ordered the

punishments to run consecutively. Appellant brings one point attacking the

sufficiency of the evidence. We affirm.

1 See Tex. R. App. P. 47.4. The Evidence

K.A., the complainant, was Appellant’s stepdaughter. K.A. turned sixteen

in November 2010 shortly before Thanksgiving. K.A. said she and Appellant had

sex together during Thanksgiving in November 2010 in Oklahoma. However, on

other occasions, K.A. said the sex occurred in their home in Fort Worth, Texas.

K.A. had a baby in August 2011. DNA showed Appellant was the father.

Appellant admitted having sex with K.A. on Thanksgiving in Oklahoma in

2010. Appellant conceded doing some research on the charges against him and

said he thought the age of consent in Oklahoma was sixteen.

Appellant’s Point

In one point, Appellant contends the evidence is insufficient to prove he

sexually assaulted K.A. in the State of Texas because the only evidence showing

the offense occurred in Texas was impeachment evidence, which Appellant

maintains had no probative value. See Williams v. State, 565 S.W.2d 63, 65

(Tex. Crim. App. 1978) (stating that evidence admitted for a limited purpose may

not be used for another purpose); Key v. State, 492 S.W.2d 514, 516 (Tex. Crim.

App. 1973) (holding that evidence admitted only for impeachment purposes has

no probative value and cannot be used when determining sufficiency of the

evidence); Cherb v. State, 472 S.W.2d 273, 279 (Tex. Crim. App. 1971) (same).

Appellant argues venue was an element of the offenses and had to be proved

beyond a reasonable doubt.

2 Discussion

Venue is not an element of Appellant’s two offenses. See Tex. Penal

Code Ann. §§ 22.011(a)(2)(A), 25.02(a)(2) (West 2011); Schmutz v. State, 440

S.W.3d 29, 35 (Tex. Crim. App. 2014). Venue need be proven by only a

preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (West

2015); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), overruled on

other grounds by Schmutz, 440 S.W.3d at 37–39 (holding venue error does not

require automatic reversal but is subject to a harm analysis under rule 44.2(b) of

the Texas Rules of Appellate Procedure). Evidence is sufficient to prove venue if

a jury may reasonably conclude that the offense was committed in the county

alleged. Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet

ref’d); Schmutz v. State, No. 06-12-00059-CR, 2013 WL 1188994, at *2 (Tex.

App.—Texarkana March 22, 2013) (mem. op., not designated for publication),

aff’d, 440 S.W.3d at 31.

The party opposing evidence has the burden of objecting and requesting a

limiting instruction when the other party introduces the evidence. Turro v. State,

950 S.W.2d 390, 400 (Tex. App.—Fort Worth 1997, pet. ref’d). If evidence is

received without a proper limiting instruction, it becomes part of the general

evidence in the case and may be used as proof to the full extent of its rational

persuasive power. See Tex. R. Evid. 105(b)(1); Hammock v. State, 46 S.W.3d

889, 895 (Tex. Crim. App. 2001); Navarro v. State, 280 S.W.3d 405, 406–07

(Tex. App.—Amarillo 2008, no pet.) (stating where prior inconsistent statement of

3 assault victim was offered to impeach her at trial and was admitted without a

limiting instruction, it was admissible for substantive purposes; court sustained

the jury’s finding of guilty in face of challenge to legal sufficiency on appeal);

Turro, 950 S.W.2d at 400.

K.A.’s earlier statements identifying Fort Worth as the location of the

offenses came into evidence on numerous occasions. For example, the

investigator from Child Protective Services, over a hearsay objection, said K.A.

told her the abuse happened in their home in Fort Worth. See Poindexter v.

State, 153 S.W.3d 402, 406–09 (Tex. Crim. App. 2005) (holding that once a trier

of fact has weighed the probative value of otherwise inadmissible hearsay

evidence, an appellate court cannot deny that evidence probative value or ignore

it in its sufficiency review). K.A. herself later twice admitted that she had told the

CPS investigator the offenses happened in their house in Fort Worth. Over a

leading objection, K.A. admitted writing the criminal investigator a letter in which

she identified Fort Worth as the location of the offenses. The letter itself was

admitted without any objection. K.A. even admitted telling the criminal

investigator it all occurred in Fort Worth. Finally, the caseworker from the

adoption center that K.A. had used said—again without any objection—that K.A.

reported to the center’s admissions department that the sexual encounter

happened in Fort Worth. On none of these instances did Appellant request

contemporaneous limiting instructions when the evidence was admitted. We

hold the evidence was admitted for all purposes. See Tex. R. Evid. 105(b)(1).

4 With this evidence, we hold that a jury could have reasonably concluded that the

offense was committed in Tarrant County as alleged. See Knabe, 836 S.W.2d at

839. We overrule Appellant’s point.

Conclusion

Having overruled Appellant’s point, we affirm the trial court’s judgments on

the two counts.

/s/ Anne Gardner ANNE GARDNER JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: June 4, 2015