Lewis Cornelius Tucker v. State

• Court: Court of Appeals of Texas
• Decided: September 10, 2009
• Docket: 06-09-00164-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00164-CR

LEWIS CORNELIUS TUCKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 23001

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Lewis Cornelius Tucker filed pro se a notice of appeal August 20, 2009, appealing from a judgment that imposed his sentence June 1, 2009.

A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2(a) prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. No motion for new trial was filed. The last date Tucker could timely file his notice of appeal was July 1, 2009, thirty days after the day the sentence was imposed in open court. See Tex. R. App. P. 26.2(a)(1).

Further, on our review of the clerk's record, we noted that the trial court's certification of right of appeal stated that this was a plea agreement case and that Tucker has no right of appeal.

Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d).

Because the trial court's certification affirmatively shows Tucker has no right of appeal, and because the record before us does not reflect that the certification is incorrect, see Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005), we must dismiss the appeal.

We dismiss the appeal for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: September 9, 2009

Date Decided: September 10, 2009

Do Not Publish

the male's anatomy that violated her "cookie" as his "business." J.D.A. argues this is insufficient to show that his "business" is his "penis" and, thus, the evidence is insufficient to support his adjudication.

The complainant testified that the "private part on a boy" was called his "business." She then testified J.D.A. put his "business" in her. She further testified that she "[p]inkie promise[d]" J.D.A. not to tell anyone and that he told her, if she did, he would go to jail. The complainant had considerable difficulty testifying about the incident, as well as all of the surrounding circumstances. She was unable or unwilling to speak and identify her own private parts, but her mother testified (as an outcry witness) that the complainant called her private parts her "cookie" and that she used that language to explain to her mother what J.D.A. had done. The mother also testified the complainant had told her in the outcry that J.D.A. had done "something really gross" to her and "put his business inside."

There was also testimony from the examining nurse the complainant had told her that J.D.A. had put his "business" in her "cookie" and that it hurt her. The nurse examined the complainant for signs of sexual assault on the night following the assault.

J.D.A. testified that the story was one concocted because the mother ⁽²⁾ of the complainant was with a group of people using marihuana at the house the night of the alleged attack, and that the mother was using the story to shift the judicial system's attention to him instead of pursuing her for use of illegal drugs and then leaving the children in the house alone while she went to the store. The mother admitted that she and several others were using marihuana that night, and admitted that she left J.D.A. and her two young daughters alone in the house for (according to her description) a few minutes while she went to a nearby store.

The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). Courts give wide latitude to testimony given by child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.--Corpus Christi 2006, no pet.). A child victim is not expected to express herself or himself at the same level of sophistication as an adult. Villalon, 791 S.W.2d at 134. ⁽³⁾ Further, outcry testimony alone can be sufficient to sustain a conviction for aggravated sexual assault. Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim. App. 1991); Kimberlin v. State, 877 S.W.2d 828, 831-32 (Tex. App.--Fort Worth 1994, pet. ref'd).

The evidence is both legally and factually sufficient to support the verdict, and the evidence to the contrary is not so strong as to require a different result. The contention of error is overruled.

Confrontation of Witness

J.D.A. next contends his right to confront the witness against him (the complainant) was violated by her "extensive non-responsiveness" during his cross-examination, based on the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. The appellate contention is based on the extensive failures to respond by the complainant to questions posed by counsel. Counsel lists and quotes thirty-four questions the complainant did not answer. According to counsel's count, which we have no reason to doubt, the attorney asked her ninety questions, which means the complainant did not respond to over one-third of the total number of questions propounded.

Nevertheless, no objection was made to these failures on that--or any--basis. Although, in the context of a series of questions attempting to elicit answers from a nonverbal eight-year-old child, it is understandable that counsel might attempt to rephrase questions or seek other ways to obtain answers, we cannot agree this complies with the duty to raise specific objections before the trial court if it is thought the process of questioning is constitutionally inadequate. When no objection is made, even on grounds involving alleged Confrontation Clause violations, the claimed error is not preserved for our review. Tex. R. App. P. 33.1; Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). The contention of error is overruled.

We affirm the judgment of the trial court.

Jack Carter

Date Submitted: October 16, 2006

Date Decided: January 9, 2007

1. Even when applying the civil rules of procedure, sufficiency of evidence points may be raised for the first time on appeal in a nonjury case without the necessity of a motion for new trial raising the issue. Regan v. Lee, 879 S.W.2d 133, 136 (Tex. App.--Houston [14th Dist.] 1994, no writ); see Tex. R. Civ. P. 324(b) (to preserve error, complaint of factual insufficiency of evidence to support jury finding must be raised by motion for new trial).

2. The mother had formerly been married to J.D.A.'s uncle--the complainant was evidently not a child of that relationship.

3. The testimony of a child victim alone is sufficient evidence of penetration to support a conviction. O'Hara v. State, 837 S.W.2d 139, 141-42 (Tex. App.--Austin 1992, pet. ref'd). There is no requirement the victim's testimony be corroborated by medical or physical evidence. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.--Corpus Christi 1987, no pet.).