                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00179-CR
                             ____________________

                           ELGIA JERODE GRIFFIN

                                         V.

                      THE STATE OF TEXAS
__________________________________________________________________

                On Appeal from the 128th District Court
                        Orange County, Texas
                     Trial Cause No. A-090746-R
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted Elgia Jerode Griffin of indecency with a child and assessed

a sentence of ten years in prison. In eight appellate issues, Griffin challenges the

legal sufficiency of the evidence, several of the trial court’s evidentiary rulings,

and the denial of his motion to suppress. We affirm the trial court’s judgment.




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                                 Factual Background

      “Ashley Smith”1 testified that she was fifteen years old when the offense

occurred. According to Ashley, Griffin knocked on the door to tell her that some of

her dogs had escaped the yard. Griffin followed Ashley and her step-aunt, D.A., to

secure the dogs. After D.A. returned to the house, Griffin told Ashley that she

would be in trouble if her mother saw her outside in her shirt and shorts. Ashley

testified that Griffin grabbed her, kissed her neck, felt her breast, placed his hand

inside her pants, and tried to penetrate her with his finger. When Ashley broke

away, Griffin asked for her telephone number, told her he would be parked down

the street, and asked if she would be back.

      D.A. testified that Ashley was upset and crying when she returned to the

house. D.R.J., Ashley’s mother, testified that Ashley called her on the telephone.

Ashley was crying and told D.R.J. that Griffin had touched her, kissed her, stated

that he wanted to lick her, and asked for her telephone number. When D.R.J.

arrived home and confronted Griffin, he denied touching Ashley. D.R.J. attempted

to speak with Griffin and Ashley together, but Ashley became hysterical and ran

from Griffin. D.K.J., Ashley’s stepfather, testified that Griffin also told him that he

did not touch Ashley. He described Ashley as trembling, crying, and hysterical.
      1
          “Ashley Smith” is a pseudonym used to refer to the complainant.

                                          2
      Detective Robert Estrello testified that he met with Griffin, who appeared

nervous and worried. Griffin told Estrello that nothing happened with Ashley and

that Ashley was lying. D.K.J. testified that Ashley had lied to him in the past and

that Griffin once told D.K.J. that Ashley had misbehaved. Ashley admitted being

upset with Griffin for telling her parents that she had misbehaved, but she testified

that he was not the only person who disclosed that information to her parents. She

denied fabricating her allegations. Estrello testified that he felt Griffin was not

being truthful. He explained that Griffin kept mentioning Ashley’s clothing, which

suggested to Estrello that “there was some kind of attraction there.”

      Detective Sergeant Sarah Ann Jefferson-Simon testified that, after Estrello’s

interview with Griffin, she contacted Griffin because she knew him and thought he

might be more truthful with her than with Estrello. Initially, Griffin denied

touching Ashley. When Jefferson-Simon told Griffin that the DNA evidence would

show what happened, Griffin claimed that Ashley used his hand to touch her breast

and that she had backed up against him, after which Griffin breathed on her neck.

                                 Legal Sufficiency

      In issue one, Griffin contends that the evidence is legally insufficient to

support his conviction for indecency with a child. Under a legal sufficiency

standard, we assess all the evidence in the light most favorable to the prosecution

                                          3
to determine whether any rational trier of fact could find the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give

deference to the jury’s responsibility to fairly resolve conflicting testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Hooper, 214 S.W.3d at 13.

      A person commits indecency with a child when he (1) engages in sexual

contact with a child under age seventeen or causes the child to engage in sexual

contact; or (2) with intent to arouse or gratify the sexual desire of any person, the

person exposes his anus or any part of his genitals, knowing the child is present, or

causes the child to expose the child’s anus or any part of the child’s genitals. Tex.

Penal Code Ann. § 21.11(a) (West 2011). “Sexual contact” means, if committed

with the intent to arouse or gratify sexual desire, (1) any touching, including

touching through clothing, of the anus, breast, or any part of the genitals of a child;

or (2) any touching of any part of the body of a child, including touching through

clothing, with the anus, breast, or any part of the genitals of a person. Id. §

21.11(c). Intent to arouse or gratify the sexual desire of any person can be inferred

from the accused’s conduct, his remarks, and all the surrounding circumstances.

McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).

                                          4
      On appeal, Griffin contends the record fails to establish that he touched

Ashley with the intent to arouse or gratify his sexual desire. However, Ashley’s

testimony alone supports a conviction for indecency with a child. See Tex. Code

Crim. Proc. Ann. art. 38.07 (West Supp. 2014). The jury heard Estrello’s opinion

that Griffin was untruthful during his initial interview, as well as evidence that

Ashley was upset after the incident occurred, insisted that Griffin had touched her

inappropriately, she was wearing appropriate clothing, and did not invite Griffin’s

advances or fabricate the allegations against him. Additionally, the jury heard

evidence that Griffin was preoccupied with Ashley’s clothing, gave two different

accounts of what transpired, claimed that Ashley had acted provocatively toward

him, and blamed Ashley for instigating the touching. Griffin’s conduct itself is

sufficient to infer the requisite intent. See McKenzie, 617 S.W.2d at 216; see also

Villanueva v. State, 209 S.W.3d 239, 246 (Tex. App.—Waco 2006, no pet.) (“An

oral expression of intent is not required; the conduct itself is sufficient to infer

intent.”). Viewing all the evidence in the light most favorable to the State, the jury

could reasonably conclude, beyond a reasonable doubt, that Griffin engaged in

sexual contact with Ashley, a child under age seventeen, with the intent to arouse

or gratify his sexual desire. See Tex. Penal Code Ann. § 21.11(a), (c); see also

Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. We overrule issue one.

                                          5
                                 Evidentiary Issues

      In issues two, three, and four, Griffin argues that the trial court improperly

excluded evidence challenging Ashley’s veracity. We review a trial court’s

evidentiary decisions under an abuse of discretion standard. Oprean v. State, 201

S.W.3d 724, 726 (Tex. Crim. App. 2006). “Error may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is

affected[.]” Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b). We will not reverse

a conviction if we have “fair assurance from an examination of the record as a

whole that the error did not influence the jury, or had but slight effect.” Taylor v.

State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).

      In this case, the trial court held a hearing pursuant to Texas Rule of Evidence

412 to address the admissibility of a prior false accusation that Ashley had made.

During the hearing, J.W. testified to an incident when Ashley attempted to sit on

his lap, but he “brushed her off.” Ashley’s father subsequently contacted J.W.

because Ashley had accused J.W. of rape. Ashley later apologized to J.W. for

accusing him of rape. Griffin argued that the allegations against him were similar

to those against J.W., namely that Ashley’s “advances were refused, and then the

next thing she’s accusing the person of rape or of sexual assault.” He asserted that

J.W.’s testimony was admissible under both Rule 412 of the Texas Rules of

                                         6
Evidence and the Confrontation Clause. The trial court declined to admit J.W.’s

testimony. On appeal, Griffin maintains that the trial court denied him the ability to

attack Ashley’s credibility, bias, self-interest, and motive in falsely accusing

Griffin.

      Texas Rule of Evidence 412 allows the admission of certain evidence

regarding an alleged victim’s past sexual behavior, but does not apply to indecency

with a child cases. Tex. R. Evid. 412; Reyna v. State, 168 S.W.3d 173, 176 (Tex.

Crim. App. 2005). Accordingly, we must determine whether the excluded evidence

was admissible under other evidentiary rules. See Hammer v. State, 296 S.W.3d

555, 563-68 (Tex. Crim. App. 2009). Specific instances of a witness’s conduct, for

purposes of attacking the witness’s credibility, other than conviction of crime, may

not be inquired into on cross-examination nor proved by extrinsic evidence. Tex.

R. Evid. 608(b). However, such evidence may be admissible to prove bias, self-

interest, or motive for testifying. Hammer, 296 S.W.3d at 563. The right of cross-

examination afforded by the United States and Texas Constitutions encompasses

exposure of a witness’s motivation for testifying and is offended if an evidentiary

rule prohibits a defendant from cross-examining a witness concerning possible

motives, bias, and prejudice such that he could not present a vital defensive theory.

Id. at 562-63. “[T]he opponent must first cross-examine the witness with the

                                          7
circumstances surrounding the bias, interest, or motive, and, if the witness denies

the circumstances or the motive, the opponent may introduce extrinsic evidence to

prove the motive or bias.” Id. at 563; see Tex. R. Evid. 613(b).

      On appeal, Griffin maintains that his defensive theory at trial was based on

the fact that he told Ashley’s parents about her misconduct on a prior occasion, and

the “perceived threat that he would do it again, was the motive for falsely accusing

Appellant.” Because she had falsely accused another person out of retaliation in the

past[,]” Griffin argues that the refusal to allow the jury to evaluate Ashley’s bias,

prejudice, or motive for accusing Griffin constitutes reversible error. However, the

record does not indicate that, during Ashley’s testimony, Griffin attempted to first

cross-examine Ashley specifically regarding the circumstances of the situation

with J.W. See Hammer, 296 S.W.3d at 563. Without first giving Ashley an

opportunity to explain or to deny these circumstances, Griffin could not introduce

extrinsic evidence, i.e., J.W.’s testimony, to prove Ashley’s motive or bias. See id.;

see also Tex. R. Evid. 613(b) (When impeaching a witness by proof of bias or

interest, and before further cross-examination or extrinsic evidence may be

allowed, the circumstances supporting such claim or the details of such statement

must be made known to the witness, and the witness must receive an opportunity to

explain or to deny the circumstances or statement.). Additionally, the jury did hear

                                          8
evidence that Griffin had reported some form of misconduct by Ashley to Ashley’s

parents; thus, the excluded evidence did not prevent Griffin from presenting his

defense that the allegations against him were made in retaliation. See Ray v. State,

178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (Although excluded testimony would

have “incrementally furthered appellant’s defensive theory[,]” because appellant

was permitted to testify about her defensive theory, the excluded evidence did not

prevent her from presenting a defense.). We overrule issues two through four.

      In issues five and six, Griffin challenges the admission of outcry testimony

from Ashley’s mother, D.R.J., which he contends improperly bolstered Ashley’s

testimony. Before trial, the State filed a notice of intent to introduce hearsay

statements pursuant to Texas Code of Criminal Procedure article 38.072. See Tex.

Code Crim. Proc. art. 38.072 (West Supp. 2014). Griffin argues that (1) the trial

court failed to conduct a hearing in accordance with article 38.072 only; and (2)

article 38.072 only applies to child victims twelve years of age or younger.

Assuming, without deciding, that the trial court abused its discretion by failing to

hold a hearing and allowing D.R.J. to testify as an outcry witness, we cannot say

that the error affected Griffin’s substantial rights. See Tex. R. Evid. 103(a); see

also Tex. R. App. P. 44.2(b). Ashley testified, without objection, to the details of

the alleged offense. “‘[O]utcry’ testimony is necessarily cumulative of a

                                         9
complainant’s testimony.” Cordero v. State, 444 S.W.3d 812, 820 (Tex. App.—

Beaumont 2014, pet. ref’d) (quoting Shelby v. State, 819 S.W.2d 544, 551 (Tex.

Crim. App. 1991)). Moreover, “improper admission of evidence is not reversible

error if the same or similar evidence is admitted without objection at another point

in the trial.” Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th

Dist.] 2004, pet. ref’d). Because the admission of D.R.J.’s testimony was harmless,

we overrule issues five and six.

                                   Motion to Suppress

      In issues seven and eight, Griffin contends that the trial court erred by

denying his motion to suppress statements he made to police. “We review a trial

court’s ruling on a motion to suppress under a bifurcated standard of review.”

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

      First, we afford almost total deference to a trial judge’s determination
      of historical facts. The trial judge is the sole trier of fact and judge of
      the credibility of the witnesses and the weight to be given their
      testimony. He is entitled to believe or disbelieve all or part of the
      witness’s testimony--even if that testimony is uncontroverted--
      because he has the opportunity to observe the witness’s demeanor and
      appearance.

      If the trial judge makes express findings of fact, we view the evidence
      in the light most favorable to his ruling and determine whether the
      evidence supports these factual findings. When findings of fact are not
      entered, we “must view the evidence ‘in the light most favorable to
      the trial court’s ruling’ and ‘assume the trial court made implicit

                                          10
      findings of fact that support its ruling as long as those findings are
      supported by the record.’”

      Second, we review a trial court’s application of the law of search and
      seizure to the facts de novo. We will sustain the trial court’s ruling if
      that ruling is “reasonably supported by the record and is correct on
      any theory of law applicable to the case.”

Id. at 447-48 (internal footnotes omitted).

      Griffin made a verbal motion to suppress the video of his statement to police

on grounds that he was not given warnings before the interview. Griffin testified

that when law enforcement officers arrived at the scene of the offense, they

instructed him to go to the police station. Griffin felt that he was in custody, so he

was going to follow instructions. He drove to the station, followed by an officer.

Griffin testified that he wanted to go home, but felt he had no choice.

      Griffin testified that he did not feel free to leave once he went into the

interrogation room and that Estrello did not mention that he could leave until

fifteen or twenty minutes into the interview. At that point, Estrello read him the

warnings and Griffin testified that he initialed the document without reading it.

Griffin explained that he was intoxicated and concerned about his ill mother, felt

intimidated and embarrassed, and wanted out of the police station. Because of his

intoxication and mental state, he did not understand the warnings. He admitted that




                                         11
he was never handcuffed. He testified that he did not believe that he had a choice

as to whether to talk to Estrello and did not feel free to leave without permission.

      Estrello testified that, before the interview, Griffin was advised that he could

leave, but was not given Miranda warnings. He testified that when he arrived at the

station, Griffin was alone in the waiting room. Estrello testified that he spoke with

Griffin in the waiting room, told him what he had been accused of, and asked

Griffin if he wanted to make a statement, to which Griffin agreed. He stated that

had Griffin declined, he would have been free to leave. He explained that, before

an interview, he always tells the interviewee that he is not under arrest and can

leave at any time. A few minutes into the interview, Estrello advised Griffin of his

constitutional rights and Griffin stated that he understood these rights, agreed to

waive them and speak with Estrello, and signed the warnings. Estrello testified that

Griffin was never placed in handcuffs or in custody. He further testified that

Griffin was cooperative and did not act like he wanted to leave or mention wanting

to leave. After the interview, Griffin was free to leave and did so.

      The trial court found that a non-custodial interrogation occurred and denied

the motion to suppress. On appeal, Griffin argues that his statements to Estrello

were “obtained involuntarily and were the result of custodial interrogation.” There

are four general situations that may constitute custody: (1) the suspect is physically

                                          12
deprived of his freedom in any significant way; (2) an officer tells the suspect he is

not free to leave; (3) officers create a situation that would lead a reasonable person

to believe that his freedom of movement has been significantly restricted; and (4)

probable cause exists to arrest the suspect and officers do not tell the suspect he is

free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009).

      The record does not demonstrate that Griffin was physically restrained or

told that he was not free to leave. Additionally, as the sole judge of the credibility

of the witnesses, the trial court was free to decide which evidence to believe. See

Valtierra, 310 S.W.3d at 447. In doing so, the trial court could reasonably

conclude that (1) officers at the scene of the offense asked Griffin to go to the

police station and he agreed to do so; and (2) before the interview, Estrello advised

Griffin that he could leave at any time and Griffin agreed to speak with Estrello.

“[W]hen a person voluntarily accompanies police officers, who are then only in the

process of investigating a crime, to a certain location, and he knows or should

know that the police officers suspect he may have committed or may be implicated

in committing the crime, we are unable to hold that under the circumstances such

person is in custody.” Turner v. State, 252 S.W.3d 571, 579-80 (Tex. App.—

Houston [14th Dist.] 2008, pet. ref’d). “Once the circumstances show the person is

acting upon the invitation, urging or request of police officers, and not the result of

                                          13
force, coercion or threat, the act is voluntary and the person is not then in custody.”

Id. at 580. Thus, we conclude that the trial court did not abuse its discretion by

finding that Griffin’s statement to Estrello was the result of a non-custodial

interrogation. Because the trial court properly denied Griffin’s motion to suppress,

we overrule issues seven and eight and affirm the trial court’s judgment.

      AFFIRMED.


                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on March 10, 2015
Opinion Delivered March 18, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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