Smith v. State

515 S.W.3d 423, 2017 WL 370155, 2017 Tex. App. LEXIS 545
CourtCourt of Appeals of Texas
DecidedJanuary 24, 2017
DocketNO. 14-15-00563-CR, NO. 14-15-00564-CR
StatusPublished
Cited by13 cases

This text of 515 S.W.3d 423 (Smith v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, 515 S.W.3d 423, 2017 WL 370155, 2017 Tex. App. LEXIS 545 (Tex. Ct. App. 2017).

Opinion

OPINION

Ken Wise, Justice

Appellant, Charles Darnell Smith, challenges his convictions for indecency with a child and super-aggravated sexual assault of a child. In two issues, appellant contends that the trial court erred in failing to charge the jury that their vérdict on each alleged offense must be unanimous, and in failing to include a culpable mental state in the jury charge on the indecency-with-a-child allegation. We affirm.

Factual Background

In 2012, the complainant, Alicia, was five years old and living in an apartment in east Harris County with her mother, Norma.1 Norma became friends with Margaret, who lived in the same apartment complex, and Margaret began babysitting Alicia. Margaret would babysit Alicia several days a week, and Alicia often stayed overnight. In March 2012, appellant moved in with Margaret.

Margaret lived in a two-bedroom apartment with her four children. After appellant moved in, he and Margaret shared the master bedroom. Margaret’s older daughter, Kathy, who was nineteen, would sleep on a sectional couch in the living room, while Margaret’s younger daughter and two sons would sleep either in the second bedroom or in the living room on an air mattress. When Alicia would stay overnight, she sometimes slept in the bedroom with Margaret’s younger daughter, Sandra, who was ten years old, but other times Alicia would sleep in the living room.

In May 2012, Sandra told Margaret that Alicia had said some disturbing things. Margaret then spoke to Alicia, who told her that appellant had put his “hot dog” in her mouth and “white stuff came out and it was smelly.” Margaret confronted appellant about Alicia’s allegation, and he denied it.

Margaret called Norma and told her what Alicia had said and asked her what she wanted to do, but Norma allowed Margaret to continue babysitting Alicia. Neither Margaret nor Norma contacted the police. Shortly after this incident, appellant moved out of Margaret’s apartment.

In late June or early July 2012, Alicia went to live with her grandmother, Vera, in Little Rock, Arkansas. Vera described Alicia as a “bubbly kid” who was very friendly, smart, and involved in athletics. At night, however, Alicia would be frightened and not want to sleep in her bedroom. She also wanted the lights left on and her bedroom windows nailed shut, even though her bedroom was on the second floor.

About a month later, Alicia woke up Vera one night around midnight. Alicia told Vera that when she was in Houston, a man named Darnell would pull her out of bed at night and put his “hot dog” in her face and “rub it all in [her] face until it got wet.” Alicia said that she couldn’t stand the smell, and so she got up and scrubbed her face. Vera understood Alicia’s reference to the man’s “hot dog” to mean his sexual organ. Vera asked who Darnell was, and Alicia said that he was the boyfriend of her babysitter, Margaret,

[426]*426Not long after that, Alicia told Vera that appellant also would rub her “down there” on her “coocoo,” which Vera understood to mean Alicia’s genitals. Vera contacted the police, but they told her that they would not make a report because the alleged offense happened in another state, and suggested that she take Alicia to the Arkansas Children’s Hospital. Vera took Alicia to the hospital, where she was given a sexual-assault examination.2 Alicia was also interviewed by a children’s advocacy center in Little Rock. Eventually, Alicia’s case was referred to a detective in the Harris County Sheriffs Office.

In 2013, separate indictments were brought against appellant for the offenses of indecency with a child and super-aggravated sexual assault of a child (under age 6),3 The indictment for indecency with a child alleged that the appellant “engage[d] in sexual contact with [Alicia], a child under the age of seventeen years and not the spouse of [appellant], by touching the GENITALS of [Alicia] with the intent to arouse and gratify the sexual desire of [appellant].” The indictment for super-aggravated sexual assault of a child alleged that appellant “intentionally and knowingly cause[d] the mouth of [Alicia], a child younger than six years of age, ... to contact the sexual organ of the [appellant].” Both offenses were alleged to have occurred “on or about the 1st day of May, 2012, in Harris County, Texas.”

During the trial, Margaret recounted Alicia’s outcry that appellant put his “hot dog” in her mouth and “white stuff came out and it was smelly.” Alicia told Margaret that it happened at night in the bathroom, but she gave no other details. Margaret later testified that Alicia said that appellant took her out of the bedroom where she was sleeping before assaulting her in the bathroom. Alicia did not provide any details about where the other children were at the time, other than they were asleep “in the bedroom.” Margaret could not recall whether Alicia said that Kathy was present.

On cross-examination, Margaret testified that Alicia described one incident of sexual assault and did not describe any incident of inappropriate touching:

Q. To the best of your knowledge in recollection, [Alicia] only told you about the hot dog incident taking place just one time; is that correct?
A. That day. She told me several times, but that day.
Q. She said that the hot dog incident took place on more than one occasion?
A. No. Just that day. I’m sorry. She told me about it when it happened at night. But she only told it to me that one day.
Q. She only mentioned that incident, as far as a penis being placed on her mouth, it only happened one time; is that correct?
A. Correct.
Q. And she didn’t describe any sort of touching on her vaginal area to you, correct?
A. Correct.

[427]*427During Vera’s cross-examination, she indicated that the sexual assault happened several times:

Q.... When [Alicia] spoke to you back in August of 2012 about her being touched, she never - - and I’m speaking of [Alicia]. She never told you where in [Margaret’s] house that this took place, correct?
A. Some mattress on the floor. No, she didn’t say where.
Q. I’m not referring to the touching. I’m referring to - - I’m referring to the touching, not the hot dog incident.
A. Touching?
Q, Yes, ma’am.
A. It was all in the - - within some - - the same incident.
Q. So, from your understanding, that was just one incident, the touching, and the hot dog was - - happened all at the same time?
A. That was one incident that happened several times.
Q. The touching?
A. Both of them.
Q. So, you’re saying that the hot dog took place several times?
A. More than once, yes.
Q. Is that what [Alicia] directly told you?
A. Directly, no.
Q.

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Cite This Page — Counsel Stack

Bluebook (online)
515 S.W.3d 423, 2017 WL 370155, 2017 Tex. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-texapp-2017.