Modify and Affirm as Modified and Opinion Filed August 27, 2020




                                     In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                              No. 05-19-00452-CR

                 RODRICK BERNARD SPENCE, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

              On Appeal from the Criminal District Court No. 4
                           Dallas County, Texas
                   Trial Court Cause No. F14-00153-K

                        MEMORANDUM OPINION
               Before Justices Myers, Partida-Kipness, and Reichek
                       Opinion by Justice Partida-Kipness
        Rodrick Bernard Spence appeals from his conviction for indecency with a

child. The State indicted Spence on charges of aggravated sexual assault of a child

younger than fourteen years of age. Spence pleaded nolo contendere to the State’s

charges and waived jury trial. After trial to the bench, the trial court found the

evidence insufficient to convict Spence of the charged offense but sufficient to

convict Spence of the lesser-included offense of indecency with a child. The trial

court found Spence guilty and sentenced him to eighteen years in prison. In one

issue, Spence contends the evidence was insufficient to support the verdict. In one
cross-issue, the State contends the trial court erroneously indicated in its judgment

that Spence pleaded guilty and asks this Court to correct the judgment to reflect

Spence’s nolo contendere plea. We modify the trial court’s judgment to correctly

reflect Spence’s plea and affirm the trial court’s judgment as modified.

                                     BACKGROUND

       In 2012 and 2013, Spence lived with Zozella Peoples in Grand Prairie, Texas.

The couple had been in an on-and-off relationship for ten years and had three sons,

D.S., Z.S.21, and R.S, who were between five and seven years old at that time.

Peoples’s daughter, Z.S., was three years old. Spence is not Z.S.’s biological father,

but Z.S. referred to Spence as “daddy.”

       Spence was arrested on July 29, 2013, for alleged domestic violence when

Peoples called police after the couple had a fight. While speaking with responding

officers, Peoples disclosed that Z.S. had recently told her that Spence had sexually

assaulted her. Peoples also described a November 15, 2012 event in which she found

Spence in Z.S.’s bedroom “leaning” over Z.S., who was naked in her bed. Based on

Peoples’s allegations, police contacted the Dallas Children’s Advocacy Center

(DCAC) to interview Z.S.

       On July 29, 2013, Nakisha Biglow, forensic interviewer with DCAC,

interviewed Z.S. After establishing rapport with Z.S., Biglow asked whether Spence



   1
     The complainant and one of her half-brothers share the same initials. Thus, we refer to the
complainant as Z.S. and her half-brother as Z.S.2 throughout this opinion.
                                             –2–
had done something to Z.S. that he was not supposed to do. Z.S. then described

three events. Z.S. first said that Spence had put his “weenie” in her “privates.”

Further questioning from Biglow established that Z.S. referred to her vaginal area as

her “privates.” Z.S. said that Spence snuck into her bedroom, removed her clothes,

got on top of her, and his penis touched the outside of her vagina. Z.S. said that

Spence apologized afterward for the incident.

      While using diagrams to discuss various body parts with Biglow, Z.S. made

the unsolicited comment that Spence had put his “weenie” in her “butt.” When

questioned further, Z.S. said that Spence had taken her into his room, put her face-

down on his bed, and touched his penis to her butt cheek. When asked whether

anything came out of his penis, Z.S. said that “white stuff” came out.

      Biglow asked Z.S. whether anyone had ever walked in during these events.

Z.S. said that Peoples walked in when Spence and Z.S. were “doing the nasty” one

time. Using a tissue box as a model for Z.S.’s vaginal area to identify where

Spence’s penis touched Z.S.’s body, Z.S. indicated that Spence’s penis entered her

vagina.

      Police sought to interview Spence after Z.S.’s interview. After receiving his

Miranda rights, Spence agreed to speak to the investigating detectives without

counsel present. Spence did not know about Z.S.’s outcry and indicated to the

detectives that he thought he was being interviewed solely on the domestic violence

charge for which he had been arrested. When detectives told him about Z.S.’s and

                                        –3–
Peoples’s allegations, Spence denied the allegations. When asked why Peoples

would make the allegations and how Z.S. could describe the events as she did,

Spence responded, “I don’t know.”

        Spence was charged with aggravated sexual assault of a child younger than

six years of age by penetration of the female sexual organ with his finger.2 On the

State’s motion, the trial court amended the indictment to allege aggravated sexual

assault of a child younger than fourteen years of age. Spence entered a nolo

contendere plea and waived his right to a jury trial.

        At trial, Peoples testified that on November 15, 2012, she entered Z.S.’s

bedroom and found Spence “leaning up” from Z.S.’s bed. Z.S. was in the bed, naked

and with her “butt” in the air. According to Peoples, she awoke in the middle of the

night when the phone rang. She noticed that Spence was not in bed, and all of the

lights in the house were off. She went upstairs and entered Z.S.’s room. When she

found Spence “leaning” over Z.S., Peoples took Z.S., wrapped her in a blanket, and

ran outside. She asked Z.S. whether Spence had touched her, and Z.S. said that “he

was just laying in the bed with her.” Peoples said she “started screaming” at Spence,

but Spence did not respond.

        Peoples also testified that Z.S. told her on July 28, 2013, of another incident

in which Spence told Z.S. to lay in bed with him, and he “stuck his fingers inside of


    2
      Spence was separately charged with aggravated sexual assault for “penetration of a child’s anus with
his sexual organ.” The trial court found insufficient evidence to support this charge and acquitted Spence.
This charge is not at issue in this appeal.
                                                   –4–
[Z.S.’s] vagina.” Peoples said that Z.S. referred to her vagina as her “privates,” and

pointed to her “lower vagina” area as the place Spence touched. Peoples then called

the police and later took Z.S. to the REACH Clinic to be examined. At the clinic,

her sons, aged eight, seven, and five at the time, allegedly said they had “touched

[Z.S.’s] private part” with their “weenies.” CPS removed all of the children, placing

them in foster care. D.S. and Z.S.2 testified at trial that Spence forced them to touch

Z.S. inappropriately on her “private areas.” On cross-examination, however, D.S.

and Z.S.2 admitted that their statements reflected in the CPS report, which contained

no such allegations, conflicted with this testimony. D.S. and Z.S.2 contended that

CPS had lied on the report.

      Biglow testified as to the methods used in her interview with Z.S. to establish

that Z.S. understood the concept of truth and the importance of telling the truth. She

stated that Z.S. made an outcry of sexual abuse during the interview. She recounted

Z.S.’s description of the alleged encounters with Spence and noted that Z.S. had no

developmental issues and exhibited no “red flags” to question her credibility. As the

best evidence of the interview, the State offered the video recording. Spence

objected, and the trial court initially sustained the objection. Z.S. then testified live

by closed-circuit video.

      Z.S. was nine years old at the time of trial. During her live testimony, she

described a time when Spence got on top of her while she was in bed. She testified

that she was clothed, but Spence was not, and that Spence rubbed his hands on her

                                          –5–
“butt”, “privacy part” and “titties.” Using a tissue box, Z.S. demonstrated the area

outside of her vagina as an area Spence touched. It is unclear from Z.S.’s testimony

when the event occurred. However, Z.S. testified that Peoples walked in when it

happened, and that Peoples called the police afterward. Z.S. did not recall any other

time Spence touched her and specifically denied that Spence put his penis in her

anus. She also testified that no one else, including her brothers, touched her

inappropriately. She also did not recall the DCAC interview, which happened six

years prior.

         After receiving this additional testimony, the trial court reversed its ruling on

the video of Biglow’s interview with Z.S. Specifically, the trial court noted Z.S.’s

“story on the stand is totally inconsistent with the interview or at least from what

[Biglow] said was contained in the interview.” Given “[t]his case, like all child

abuse cases, hinges basically on what the child says,” the trial court admitted the

video.

         After the close of evidence, the trial court made the following findings:3

          I clearly have evidence of aggravated sexual assault of a child with
           contact by penis to vagina. It’s demonstrated in the video with a Kleenex
           box.
          But I don’t have a case of aggravated assault by contact with penis. So I
           don’t have anything to consider.




    3
      The trial court also found no outcry to support the charge of aggravated sexual assault for “penetration
of a child’s anus with his sexual organ” and acquitted Spence of this charge.
                                                    –6–
       The last case I have is contact or penetration of the female sexual organ
        by the Defendant’s fingers. There is no outcry in the video
        of . . . penetration with fingers.
       I think clearly something happened and this was before she told mom.
        She said she told mom about being touched with the fingers, but she
        never demonstrated where she was touched because she shut down and
        quit talking.
       I just don’t find most of the witnesses in this trial to be credible, there’s
        too many different stories.
       When the child testified she said Defendant never put his finger in her
        private, never put fingers in her butt, never put his private in her butt,
        never put his private in her private. She demonstrated in my office that he
        touched her on the outside.
       I cannot find mom credible enough to say that the outcry of penetration is
        enough for me to find guilt. But I do find the Defendant guilty of
        indecency with a child.
The trial court sentenced Spence to eighteen years in prison for the lesser-included

offense of indecency with a child.

                                     ANALYSIS

A.    Spence’s Issue

      In one issue, Spence contends the evidence is insufficient to support the trial

court’s guilty verdict as required by article 1.15 of the code of criminal procedure.

When a defendant waives his right to a jury trial and enters a plea of no contest, the

State is not required to prove the defendant’s guilt beyond a reasonable doubt.

McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no pet.). Article

1.15 of the Texas Code of Criminal Procedure requires only substantiation of the

plea. See TEX. CODE CRIM. PROC. art. 1.15; see also Menefee v. State, 287 S.W.3d

9, 13–14 (Tex. Crim. App. 2009) (Under Article 1.15, a trial court may not render a

                                         –7–
conviction without evidence establishing a defendant’s guilt, even if the defendant

has pleaded guilty or no contest.). “By its plain terms it requires evidence in addition

to, and independent of, the plea itself to establish the defendant’s guilt.” Menefee,

287 S.W.3d at 14. This evidence need not prove the defendant’s guilt beyond a

reasonable doubt, but it must embrace every essential element of the offense

charged. Wright v. State, 930 S.W.2d 131, 132 (Tex. App.—Dallas 1996, no writ).

      Spence was convicted of the offense of indecency with a child by sexual

contact. A person commits this offense if the person engages in sexual contact with

a child younger than seventeen years of age or causes a child to engage in sexual

contact. TEX. PENAL CODE § 21.11(a)(1). “Sexual contact” includes touching of

“any part of the genitals of a child,” including touching through clothing, “if

committed with the intent to arouse or gratify the sexual desire of any person.” Id.

§ 21.11(c)(1).

      A child sexual abuse victim’s uncorroborated testimony is sufficient to

support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. art.

38.07(a); Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014,

no pet.). The State has no burden to produce any corroborating or physical evidence.

Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). Likewise, a child victim’s outcry statement alone can be sufficient to support

a conviction for a sexual offense. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—

Dallas 2002, pet. ref’d). There is no requirement that properly admitted outcry

                                          –8–
testimony be corroborated or substantiated by the victim or independent evidence.

Rodriguez v. State, 819 S.W.2d 871, 874 (Tex. Crim. App. 1991).

       The record reflects that Z.S. was four years old in 2013 when she told Peoples

that Spence had put his fingers in her “privates” and described three similar events

to Biglow. In one particular event, Z.S. claimed that Spence snuck into her room,

got on top of her, and touched the area outside of her vagina. Approximately six

years later, Z.S. testified at trial that she did not recall talking to Biglow but did recall

an event in which Spence got on top of her while she was in bed. According to Z.S.,

Spence rubbed his hands on her “butt”, “privacy part” and “titties.” Using a tissue

box, Z.S. demonstrated that Spence touched the area outside of her vagina. Z.S.

testified that she did not recall any other time when Spence touched her

inappropriately or put his penis in her anus. This inconsistency with her prior

statements to Biglow, however, does not affect the probative value of her testimony.

See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (the trier of

fact can observe the complainant’s demeanor and is entitled to reconcile any

conflicts in testimony and disbelieve a recantation); Martines, 371 S.W.3d at 241

(same).    As the trier of fact, the trial court was entitled to reconcile any

inconsistencies between Z.S.’s statements to Biglow with her trial testimony. See

Chambers, 805 S.W.2d at 461. The trial court’s findings made in open court

establish that it did just that, finding Z.S.’s trial testimony credible.



                                            –9–
      Spence contends the evidence was not sufficient to prove the alleged “sexual

contact” was done with the requisite intent. In the context of indecency with a child,

the finder of fact can infer the requisite intent to arouse or gratify sexual desire from

a defendant’s conduct, remarks, and all the surrounding circumstances. McKenzie

v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Keller v. State, No. 05-18-

00778-CR, 2020 WL 3118713, at *8 (Tex. App.—Dallas June 12, 2020, no pet. h.).

No oral expression of intent or visible evidence of sexual arousal is necessary.

Keller, 2020 WL 3118713, at *8; see also Connell v. State, 233 S.W.3d 460, 467

(Tex. App.—Fort Worth 2007, no pet.); Scott v. State, 202 S.W.3d 405, 408 (Tex.

App.—Texarkana 2006, pet. ref’d); Gregory v. State, 56 S.W.3d 164, 171 (Tex.

App.—Houston [14th Dist.] 2001, pet. dism’d).

      Z.S. testified that an unclothed Spence came into her room, got on top of her

while she was in bed, and began rubbing her body. Z.S. also testified that she felt

sad when Spence did this because “he was doing something that he wasn’t supposed

to.” From this evidence, the trial court could infer that Spence acted with intent to

arouse and gratify his own sexual desire. See McKenzie, 617 S.W.2d at 216; see

also Connell, 233 S.W.3d at 467 (jury could infer intent from the way in which

appellant touched complainant’s “bottom” and that appellant’s actions made

complainant feel uncomfortable); Lopez v. State, No. 01-10-01103-CR, 2012 WL

524439, at *4 (Tex. App.—Houston [1st Dist.] Feb. 16, 2012, no pet.) (mem. op.,



                                         –10–
not designated for publication) (trial court could infer intent from evidence that the

manner in which appellant touched the complainant made her uncomfortable).

      After weighing the evidence and evaluating the credibility of the witnesses,

the trial court found that the evidence was insufficient to prove the charged offense

of aggravated sexual assault by penetration of the female sexual organ with a finger,

but sufficient to prove guilt as to the lesser-included offense of indecency with a

child. We conclude the evidence introduced by the State was sufficient under Article

1.15 because it embraced every essential element of the offense on which Spence

was convicted. See Menefee, 287 S.W.3d at 13–14; McKenzie, 617 S.W.2d at 216

(testimony of appellant’s conduct was sufficient to permit deduction of intent); TEX.

PENAL CODE § 21.11(c)(1). Accordingly, we overrule Spence’s sole issue.

B.    The State’s Cross-Issue

      In its one cross-issue, the State contends the trial court’s judgment erroneously

indicates that Spence pleaded guilty. The State asks us to modify the judgment to

correctly reflect Spence’s nolo contendere plea.

      This Court has the power to modify an incorrect judgment to make the record

speak the truth when we have the necessary information before us to do so. See TEX.

R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);

Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).

Appellate courts have the power to reform whatever the trial court could have

corrected by a judgment nunc pro tunc when the evidence necessary to correct the

                                        –11–
judgment appears in the record. Asberry, 813 S.W.2d at 530. Appellate courts may

reform judgments to correct improper recitations or omissions relating to

punishment, delete affirmative findings improperly entered into the judgment, and

correct statutory references. See id.; Medlock v. State, No. 05-11-00668-CR, 2012

WL 4125922, at *1 (Tex. App.—Dallas Sept. 20, 2012, no pet.) (mem. op., not

designated for publication).

      The record reflects that Spence pleaded nolo contendere to the State’s charges,

yet the judgment states “Plea to Offense: GUILTY.” Based on these facts, we

sustain the State’s cross-issue and modify the judgment accordingly. See TEX. R.

APP. P. 43.2(b); Asberry, 813 S.W.2d at 529–30.

                                  CONCLUSION

      On the record before us, we conclude the State presented sufficient evidence

to establish the essential elements of the offense. We also conclude that the trial

court’s judgment incorrectly reflects Spence’s plea. Accordingly, we modify the

trial court’s judgment to correctly reflect the plea and affirm as modified.

                                       /Robbie Partida-Kipness/
                                       ROBBIE PARTIDA-KIPNESS
                                       JUSTICE


Do Not Publish
TEX. R. APP. P 47.2(b).
190452F.U05




                                        –12–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

RODRICK BERNARD SPENCE,                      On Appeal from the Criminal District
Appellant                                    Court No. 4, Dallas County, Texas
                                             Trial Court Cause No. F14-00153-K.
No. 05-19-00452-CR          V.               Opinion delivered by Justice Partida-
                                             Kipness. Justices Myers and Reichek
THE STATE OF TEXAS, Appellee                 participating.

   Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

      The section entitled “Plea to Offense” is modified to show “NOLO
      CONTENDERE.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 27th day of August, 2020.




                                      –13–
