                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                        No. 07-13-00132-CR


                     CHRISTOPHER DOUGLAS SIMMONS, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                         On Appeal from the Criminal District Court No. 1
                                      Tarrant County, Texas
                  Trial Court No. 1294037D, Honorable Sharen Wilson, Presiding

                                           May 2, 2014

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Christopher Douglas Simmons, appeals the trial court’s judgment

pronouncing him guilty of four violations of civil commitment requirements for sexually

violent predators.1      As to each violation, appellant was sentenced to seven years’

imprisonment, the four sentences to run concurrently. On appeal, he challenges the

sufficiency of the evidence to support his convictions. We will affirm.




       1
           See TEX. HEALTH & SAFETY CODE ANN. § 841.085 (West 2010).
                                  Factual and Procedural History


        By judgment signed on August 19, 2009, by the 435th Judicial District Court of

Montgomery County, Texas, appellant was adjudicated a sexually violent predator and

was civilly committed upon his release from the Texas Department of Criminal Justice

(TDCJ) for one or more sexually-based offenses.2 See TEX. HEALTH & SAFETY CODE

ANN. § 841.003 (West Supp. 2013).


        When appellant was released from TDCJ in January 2012 and pursuant to the

order of civil commitment, he was sent to live at the Avalon Fort Worth Transitional

Center, a halfway house, where he was assigned custodial duties at the facility.3 Case

manager, Clemmy Washington, of the Office of Violent Sex Offender Management

(OVSOM), set up an initial meeting with appellant in which Washington explained all the

behavior and supervision requirements and conditions by which appellant must abide

while living at the facility.      See id. § 841.082(a) (West Supp. 2013) (outlining the

“requirements necessary to ensure the person’s compliance with treatment and

supervision and to protect the community,” including the person’s “compliance with all

written requirements imposed by the case manager or otherwise by the [OVSOM]”).

Appellant was given a copy of the requirements, indicated to Washington that he

understood those requirements, agreed to abide by them while he was a resident of the
        2
           The precise sexual offense or offenses for which appellant was convicted and imprisoned is not
clear from the record before us. We do know that the Beaumont Court of Appeals affirmed the trial
court’s final judgment and order of civil commitment signed August 19, 2009. See In re Commitment of
Simmons, No. 09-09-00478-CV, 2011 Tex. App. LEXIS 4500 (Tex. App.—Beaumont June 16, 2011, no
pet.) (mem. op.).
        3
           It appears that the formal name of the facility owned and operated by Avalon Correctional
Services, Inc. is the “Fort Worth Transitional Center.” However, throughout the record, the facility is
referred to more informally as “the Avalon house” or “the Avalon halfway house” by both its residents and
its staff. For convenience, we will refer to the facility likewise as “the Avalon house” throughout this
opinion.

                                                   2
Avalon house, and signed and dated a copy of them, a copy of which is included in the

record.


      Of the several requirements applicable to appellant as a resident of the Avalon

house was Condition 11, prohibiting appellant from engaging in “deviant masturbation”

as that term is defined by those conditions. Appellant was also subject to Condition 29,

prohibiting him from exposing himself to someone with whom he was “not in a

committed, consenting, monogamous sexual relationship.” Appellant further agreed to

refrain from “communicat[ing] with others in a manner which could be considered

obscene, threatening[,] or harassing.”


      Following a fellow resident’s report, the details of which will be provided later in

the opinion, that appellant had engaged in behavior which violated the conditions to

which he was subject, appellant was arrested and charged with violating the conditions

and requirements of his civil commitment as a sexually violent offender. See TEX.

HEALTH & SAFETY CODE ANN. § 841.085. The State proceeded on eight separate counts

within the indictment that pertained to allegations that the appellant had exposed his

genitals or had masturbated in front of a fellow resident of the Avalon house. Appellant

waived a jury trial. After hearing the evidence, the trial court found appellant guilty of

Paragraphs 1 and 3 of Count II and Paragraphs 1 and 3 of Count III and sentenced

appellant to seven years’ incarceration as to each offense, again, those sentences

running concurrently.


      On appeal, appellant presents to this Court one issue, that one issue concerning

the sufficiency of the evidence to support the trial court’s conclusion that he was guilty


                                            3
of the four violations. More specifically, he challenges the sufficiency of the evidence on

the basis of the credibility of the State’s primary witness, calling it “so rife with

inconsistencies so as to be completely lacking in credibility or reliability.” The remainder

of his position is as follows:


       The Trial Court’s finding of guilt was based solely on her testimony, even
       though the evidence presented showed clearly that she was lying about
       her whereabouts as to the first alleged incident of indecent exposure.
       Logic suggests that if she lied about the first incident, (and the record
       shows overwhelmingly that she did in fact lie), she cannot be afforded any
       credibility as to the second allegation.         The Trial Court should[,]
       therefore[,] have found the Appellant not guilty as to all counts.

After reviewing the record in the requisite light, we will affirm the trial court’s judgment of

conviction.


                                    Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”                 Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate


                                              4
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                      Applicable Law


       “A person commits an offense if, after having been adjudicated and civilly

committed as a sexually violent predator under [Chapter 841], the person violates a civil

commitment requirement imposed under Section 841.082.”             TEX. HEALTH & SAFETY

CODE ANN. § 841.085. Section 841.082 requires, inter alia, “the person’s participation in

and compliance with a specific course of treatment provided by the office and

compliance with all written requirements imposed by the case manager or otherwise by

the [OVSOM].” See id. § 841.082(a)(4). Appellant does not challenge a particular

element of the offense for which he was convicted. Instead, he maintains that a State’s

witness was so unreliable and so incredible as a witness that the trial court could not

have reasonably concluded, on her testimony, that appellant engaged in the behavior

alleged.


       We begin with the well-established principle that an appellate court will not

position itself as a thirteenth juror to disregard, realign, or reweigh the evidence. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (en banc). It is equally

well-established that resolution of conflicts and inconsistencies in the evidence is the


                                             5
province of the trier of fact. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim.

App. 1982) (op. on reh’g); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979).

Such conflicts will not call for reversal so long as there is enough credible testimony to

support the conviction. Bowden, 628 S.W.2d at 784. Because resolution of conflicts or

inferences therefrom lies within the exclusive province of the fact-finder, it may choose

to believe all, none, or some of the evidence presented to it. See Heiselbetz v. State,

906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (en banc); Bowden, 628 S.W.2d at 784.

“The trial judge, when sitting as the sole trier of facts, is the exclusive judge of the

credibility of the witnesses and the weight to be given to their testimony.” Joseph v.

State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995) (en banc)


                                        Analysis


       With those principles in mind, we examine the testimony and the other evidence

presented to the trial court.


       Lisa Knight, a felony DWI parolee and fellow resident of the Avalon house,

testified that on July 17, 2012, at approximately ten or eleven o’clock in the morning,

she was at the women’s telephone booth in the administrative section of the house

when appellant approached her, exposed his genitals, and declared that he liked to

rape women. She had never spoken with appellant and knew him only as the person

assigned custodial duties around the facility; she had no relationship, sexual or

otherwise, with appellant and did not consent to his behavior. Knight explained that she

was “very offended” by appellant’s conduct and statement but did not report it that day.




                                            6
        Approximately one month later, in the early morning hours of August 17, 2012,

Knight again saw appellant as she sat in the female smoking area outside the chow hall

and as appellant stood in or very near one of the three doorways into the chow hall,

approximately thirty to forty feet from her, she estimated.4 She testified that appellant

was masturbating as he exposed himself to her and her roommate and made eye

contact with her, behavior which Knight considered obscene and harassing. She left

the smoking area, returned to her room, and, shortly thereafter, reported the incident.


        Tanya McElrath, assistant administrator with Avalon Correctional Services who

worked at the Avalon facility in Fort Worth, conceded that appellant would have been

permitted to be in more places at less restricted times than most other residents as a

consequence of his custodial and maintenance duties at the facility. Specifically, she

testified that appellant would sometimes remain in the chow hall after meal time hours

for the purpose of cleaning up. So, it appears the several gender, time, and location

restrictions in place at the Avalon house were relaxed for appellant so that he could

fulfill his assigned duties.


        Eric Ramon, a client monitor supervisor at the Avalon facility since 2009, testified

that he spoke with appellant nearly every day and that appellant helped Ramon on a

regular basis with the duties associated with setting up the chow hall for meals. He

testified that, on the morning at issue, he spoke with appellant. Appellant asked him

whether he had seen Knight around; Ramon responded that he had not.
        4
          Though there is a significant amount of testimony detailing the location of the female smoking
area in relation to the chow hall, the layout of and the relationship between the two areas remain
somewhat unclear from the record other than it having been clarified that the designated smoking area for
females was not inside the confines of the chow hall. It appears that, when Knight was at the smoking
area, she was outside and, perhaps, one level above the chow hall doorway in which appellant exposed
himself and masturbated in front of her.

                                                   7
         In his challenge to the consistency and credibility of Knight’s testimony, appellant

emphasizes that, according to the Avalon house records, Knight was not at the Avalon

house when the incident in July allegedly occurred and also points out that she waited

about thirty days to report the first encounter with appellant. Indeed, according to the

sign-in/sign-out sheets monitored and controlled by Avalon staff, Knight had checked

out of the facility at 9:07 on the morning of July 17, 2012, and did not returned until 4:05

that afternoon. At least twice during her testimony, however, Knight admitted that she

was not certain about the time; she thought it had been “around that time.” Appellant

also points out that Knight had left the facility to attend a court hearing at which she

testified against another Avalon house resident who had allegedly cursed at and

threatened her. On this basis, appellant characterizes Knight as a “somewhat litigious

individual.” With respect to the delay-in-reporting point, appellant emphasizes that,

even though Knight testified that she had been “very offended” by the July incident, she

failed to report it until approximately one month later at the same time she reported the

second encounter. Knight explained her decision to make a delayed report of the July

incident as follows: “Because after talking to some of the other women and finding out

that he had done this, which they didn’t go forward, I – I just decided on my own I didn’t

have to be subjected to that.”


         Appellant also focuses on Knight’s own violation of Avalon house rules by her

impermissible possession of a cell phone, an offense discovered the very day Knight

reported appellant’s behavior to the staff. Knight freely admitted her possession of the

cell phone both to administrators at the facility the day the phone was discovered and at

trial.   She explained that there was no confrontation between her and Avalon


                                              8
management over the phone. She went to the management staff that day and admitted

to them that the phone was hers and not her roommate’s, as the staff had originally

suspected. She testified that she never expected any reward or any relief from her

punishment relating to the cell phone as a consequence of her reporting the encounters

with appellant. In fact, she testified that she was punished for having had possession of

the cell phone, having been “red tagged”—restricted from leaving the facility at all—for

“more than three” days.


      Appellant also points to Ramon’s testimony that, when the male residents of the

facility are eating in the chow hall, the female residents are not permitted into the chow

hall; female residents should all be back in their rooms when the males are eating in the

chow hall. However, Ramon also testified that, when the male residents are finished

with their meals, everyone is allowed to move about freely. Ramon also recalled that he

spoke to appellant that morning and he had asked about Knight’s whereabouts and

whether Ramon had seen her. Ramon testified he told appellant he had not seen her

that morning. It is not clear at what time appellant asked Ramon about Knight, and

Ramon concedes that he may not have seen Knight if she happened to be outside the

chow hall in the designated smoking area for females.


      While we do recognize that there is evidence which contradicts or undermines

Knight’s estimated time of the July incident, we note that Knight did concede that she

was not certain of the exact time of the incident. We also acknowledge that the trial

court, sitting as finder of fact, was charged with resolving conflicts or confusion in the

testimony. See Joseph, 897 S.W.2d at 376. And, as the State responds, Texas law

permits the fact-finder to believe a witness even though a portion or portions of the

                                            9
witness’s testimony has been contradicted. See Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). Further, as fact-finder, the trial court was free to choose to

believe all, none, or some of the evidence presented to it. See Heiselbetz, 906 S.W.2d

at 504.


      Similarly, there are uncertainties as to some details surrounding the August

incident. However, the trial court, sitting as fact-finder, was charged with resolution of

conflicting evidence and was free to believe any, all, or none of Knight’s testimony.

Again, we will not serve as the thirteenth juror to reevaluate the evidence and make the

credibility and weight determinations which remain duties belonging solely to the fact-

finder. See Moreno, 755 S.W.2d at 867. Our review of the record in a light most

favorable to the verdict reveals sufficient evidence—albeit not evidence entirely without

conflict or confusion—such that the trial court could have reasonably found that

appellant was guilty of violating the requirements of his civil commitment as a sexually

violent predator. See Brooks, 323 S.W.3d at 912.


                                       Conclusion


      Having overruled appellant’s sole point of error, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                         Mackey K. Hancock
                                             Justice

Do not publish.




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