                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00487-CR


CHRISTOPHER ADRIAN MILLER                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Christopher Adrian Miller appeals his convictions of four counts

of aggravated sexual assault of his daughter Madison. 2 We affirm in part and

reverse and render in part.




      1
       See Tex. R. App. P. 47.4.
      2
        To protect the anonymity of the child in this case, we will use aliases to
refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d
                               Background Facts

      In late November 2011, Denise Callahan, then a detective with the White

Settlement Police Department, received a report from the Department of Family

and Protective Services concerning Appellant. Detective Callahan telephoned

Appellant, and he agreed to come to the police station for an interview. In the

interview, Appellant admitted to three sexual interactions with his three-month-old

daughter. The first instance occurred around September 6, 2011. Appellant was

watching a pornographic movie while holding Madison on his lap. She reached

for his erect penis, and he “stuck [his] penis to her mouth.”       In the second

instance, on or about September 18, 2011, he “more intentional[ly]” allowed

Madison to suck on his penis.         The third instance occurred on or about

September 24, 2011, when Appellant was changing Madison’s diaper on a

changing table in her nursery. He “notice[d] that the height of the changing table

was the right height for [him] to put [his] penis under her,” so he placed his penis

“under her butt cheeks and moved back and forth.”            He pulled away and

ejaculated onto the floor of the nursery. Appellant eventually admitted what he

had done to his wife and some church members. Some of the church members

then informed the police.




444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936
n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                         2
      Detective Callahan went to Appellant’s house, where she spoke to

Appellant’s wife, Stacy. Callahan asked Stacy’s permission to search the house.

Stacy agreed and signed a “permission to search” form.

      A crime scene technician used a black light in the nursery. The black light

revealed stains on the floor near the changing table where Appellant stated he

had ejaculated. Callahan then asked Stacy’s permission to remove a section of

the carpet for testing “out of courtesy, because it was a rent[al] house.” Callahan

wrote on the permission to search form, “Removed sample of carpet out of

[Madison]’s room,” and Stacy signed next to the notation.

      A few days later, Appellant called Callahan and said that he had

“remembered a fourth incident and that he would like to come talk to [her] about

some additional information.”     Appellant returned to the police station and

confessed to having “placed [his] penis on [Madison’s] vagina,” taking a

photograph of it with his cellphone, and “immediately delet[ing] it.”    He gave

Callahan his laptop computer that he said he had used to watch pornography

and told Callahan where she could find his phone’s memory card.            He told

Callahan, however, that he had reformatted the memory card. Appellant also

consented to a buccal swab.

      Forensic tests showed that Appellant’s computer had been cleaned the

day before he brought the computer to the police department using a program

that overwrites files so that they are unrecoverable. The memory card from the




                                        3
phone had been reformatted as Appellant had claimed.                    DNA testing

demonstrated that the stain on the carpet sample was Appellant’s semen.

      Appellant was charged with four counts of aggravated sexual assault. He

pleaded not guilty to all four charges. After a trial, a jury found Appellant guilty on

all counts. The jury assessed punishment of a life sentence for each count,

which the trial court ordered to run concurrently. Appellant then filed this appeal.

                                     Discussion

I. Warrantless Search

      In Appellant’s first issue, he argues that the State violated his Fourth

Amendment rights by searching his house without a warrant and by exceeding

the scope of Stacy’s consent. He also argues that Stacy’s consent to remove the

carpet sample was invalid because she only rented the house.

      Appellant filed a motion to suppress the evidence taken from his house

during the search. After a hearing, the trial court denied the motion. At trial, the

State offered into evidence the permission form signed by Stacy and the carpet

sample obtained during the search. The State argues that Appellant waived this

issue because at trial his attorney stated that he had “no objection” to the

admission of the permission form and carpet sample. When a pretrial motion to

suppress evidence is overruled, the defendant need not subsequently object at

trial to the same evidence in order to preserve error on appeal. Moraguez v.

State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).              However, when the

defendant affirmatively asserts during trial that he has “no objection” to the


                                          4
admission of the complained-of evidence, he waives any error in the admission

of the evidence despite the pretrial ruling. Moraguez, 701 S.W.2d at 904; see

Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App. 2013) (holding that

“if from the record as a whole the appellate court simply cannot tell whether an

abandonment was intended or understood,” an “affirmative ‘no objection’

statement will, by itself, serve as an unequivocal indication that a waiver was

both intended and understood”). Because defense counsel specifically stated

that he had “no objection” to the admission of the carpet sample, and because

the record does not plainly indicate an intention not to abandon the claim of error,

we hold that the issue has not been preserved for appeal.             We overrule

Appellant’s first issue.

II. Corpus Delicti

      In Appellant’s second issue, he argues that the State failed to corroborate

his confession as to Counts One, Two, and Four. 3 An extrajudicial confession by

the accused is insufficient to support a conviction unless it is corroborated.

Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990), cert. denied, 501

U.S. 1232 (1991). The corpus delicti rule is a rule of evidentiary sufficiency that

states that “an extrajudicial confession of wrongdoing, standing alone, is not

enough to support a conviction; there must exist other evidence showing that a

      3
       In Counts One and Two, the State alleged that Appellant intentionally or
knowingly caused Madison’s mouth to contact his penis. In Count Four, the
State alleged that Appellant intentionally or knowingly caused Madison’s sexual
organ to contact his penis.


                                         5
crime has in fact been committed.” Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim.

App. 2000). This other evidence need not be sufficient by itself to prove the

offense; “all that is required is that there be some evidence which renders the

commission of the offense more probable than it would be without the evidence.”

Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (quoting

Chambers v. State, 866 S.W.2d 9, 15–16 (Tex. Crim. App. 1993), cert. denied,

511 U.S. 1100 (1994)). The State may prove the corpus delicti by circumstantial

evidence. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert.

denied, 522 U.S. 844 (1997). Thus, where there is an extrajudicial statement, as

exists in this case, the corpus delicti rule requires us to consider all the record

evidence, other than the extrajudicial statement, in the light most favorable to the

verdict and to determine whether that evidence tends to establish that someone

committed an aggravated sexual assault against the victim. Fisher v. State, 851

S.W.2d 298, 303 (Tex. Crim. App. 1993).

      The evidence presented included the carpet sample from Madison’s

nursery with Appellant’s semen on it and testimony from a digital forensics

examiner who stated that Appellant’s computer and phone had been cleaned and

reformatted so that evidence could not be recovered from them.               In his

confession, Appellant stated that Counts One and Two occurred on the couch

and Count Four occurred on the bed, not in the nursery where the assault in

Count Three occurred. He did not state that he ejaculated during Counts One,

Two, or Four. Detective Callahan testified that there was no physical evidence


                                         6
regarding Count Four. The digital forensics expert testified that any photos or

other digital evidence had been destroyed. The only corroborating evidence that

exists corroborates only Count Three.              The State was required to present

evidence corroborating each count, and it did not do so. See Daniels v. State,

No. 02-06-00258-CR, 2007 WL 2460263, at *4 (Tex. App.—Fort Worth Aug. 31,

2007, no pet.) (mem op., not designated for publication) (“[W]e simply cannot

agree        with   the   State’s   argument   that   Washington’s   testimony,   which

appropriately corroborated Daniels’s confession as to Count 1, also corroborated

his statements regarding the alleged incidents charged in Counts 2 and 3.”). The

evidence, viewed in the light most favorable to the verdict, did not establish the

corpus delicti for Counts One, Two, and Four. 4 We sustain Appellant’s second

issue.

III. Sufficiency of the Evidence of Count Three

         In Appellant’s third issue, he argues that the evidence is insufficient to

support his conviction for Count Three of the indictment. In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determine whether any

         4
       The State urges that the corpus delicti rule should be abolished and
replaced with a “trustworthiness standard.” The State also acknowledges that as
an intermediate court, we are duty bound by the precedent of the Texas Court of
Criminal Appeals. Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth
2003, pet. ref’d). We therefore decline to apply our own standard to the present
case. See Abdnor v. Ovard, 653 S.W.2d 793, 794 (Tex. Crim. App. 1983)
(holding that the court of appeals erred by imposing its own standard inconsistent
with the court of criminal appeals’s previous opinion).


                                               7
rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

      The third count alleged that Appellant intentionally or knowingly caused

Madison’s anus to contact his penis. In his confession, Appellant stated that

while he was changing Madison’s diaper on the changing table, he put his penis

“between her cheeks, underneath her, and she started laughing.” He explained,

“I was trying not to push into her. . . . I didn’t thrust, you know what I’m saying?

There was no thrusting, there was just a general back and forwards.” He stated

that he put her in her swing and she was “crying up a storm.” When asked if his

penis contacted Madison’s anus, he said, “Honestly, I can’t be sure.” He said

further, “Had I touched her anus with my penis? I could have. You’re in that

situation. I mean, I could have. I’m not saying yeah I know I did or yeah I didn’t.”

      Appellant argues that the uncertainty of his recollection makes it

impossible for a rational jury to find beyond a reasonable doubt that his penis

contacted Madison’s anus. He states on appeal, “The State’s argument appears

to be that in the event of uncertainty, the tie[-]breaker defaults to the State.” It is,

however, the jury’s responsibility, not ours or the State’s, “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” See Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007) (quoting Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789). The

trier of fact is the sole judge of the weight and credibility of the evidence. See


                                           8
Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise v. State, 364 S.W.3d

900, 903 (Tex. Crim. App. 2012).       We may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      Appellant’s confession contained graphic descriptions of the sexual

assault, which allowed the jury to visualize the event and draw reasonable

inferences. Appellant stated that he moved his daughter’s “bottom apart” and

touched “between her cheeks” with his penis. Appellant described moving his

penis back and forth in that position while taking care not to penetrate her anus

to avoid injury. After considering all the evidence, the jury could have reasonably

inferred that Appellant’s penis contacted his daughter’s anus, thereby creating

his need to prevent penetration. After considering the facts, the jury deduced a

logical consequence from them, and we believe this inference is reasonable.

See Trevino v. State, Nos. 02-10-00472-CR, 02-10-00473-CR, 02-10-00474-CR,

2012 WL 2428522, at *5 (Tex. App.—Fort Worth June 28, 2012, pet. ref’d) (mem

op., not designated for publication). Based upon the cumulative force of the

evidence when viewed in the light most favorable to the verdict, we cannot say

that the jury’s determination was unreasonable. See Crosby v. State, No. 01-01-

00850-CR, 2002 WL 31236302, at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 3,

2002, pet. ref’d) (not designated for publication) (holding that complainant’s

testimony that appellant “spread her legs, and touched her bottom with his




                                        9
‘private,’ and that this hurt her” was sufficient to show that appellant had contact

with complainant’s anus). We overrule Appellant’s third issue.

                                   Conclusion

      Having overruled Appellant’s first and third issues, we affirm the trial

court’s judgment as to Count Three for aggravated sexual assault.           Having

sustained Appellant’s second issue, we reverse Appellant’s convictions as to

Counts One, Two, and Four and render a judgment of acquittal as to those

counts. See Tex. R. App. P. 43.2(c), 51.2(d); Daniels, 2007 WL 2460263, at *7.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J., MEIER and GABRIEL, JJ.

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

DELIVERED: December 12, 2013




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