AFFIRM as Modified; Opinion Filed April 7, 2020




                                       In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-00405-CR
                               No. 05-19-00406-CR

                     WINSTON A. MCKENZIE, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the 283rd Judicial District Court
                            Dallas County, Texas
              Trial Court Cause Nos. F17-20656-T & F19-00104-T

                       MEMORANDUM OPINION
                  Before Justices Bridges, Molberg, and Carlyle
                           Opinion by Justice Carlyle

      After appellant Winston A. McKenzie pleaded not guilty to aggravated sexual

assault and indecency with a child, a jury found him guilty of both offenses,

assessing punishment at fifty-five years’ confinement and a $10,000.00 fine in each

case, with the sentences to run concurrently.

      In six issues on appeal, Mr. McKenzie asserts the same three complaints in

each case: (1) sufficiency, (2) error in denying his motion for mistrial at the

punishment phase, and (3) unauthorized fines. We affirm the trial court’s judgments

as modified in this memorandum opinion. See TEX. R. APP. P. 47.4.
                                   Background

      At trial, Candice Cooke testified Mr. McKenzie is her ex-boyfriend. They

dated from 2014 to 2017. In 2014, she and Mr. McKenzie moved from Georgia to

DeSoto, Texas, with her six-year-old son and thirteen-year-old daughter, P.D. They

lived in DeSoto for eight months, then moved back to Georgia.

      In 2017, several months after she and Mr. McKenzie broke up, Ms. Cooke

received a phone call from Mr. McKenzie’s ex-wife. Based on that call, Ms. Cooke

asked P.D. whether she had been “harmed in any way that I didn’t know about.”

P.D. told her Mr. McKenzie had “touched her inappropriately” while they lived in

Texas. Ms. Cooke called police, who sent an investigator to interview P.D.

      P.D. testified that in summer 2015, she was thirteen years old and lived in

DeSoto with her mother, her brother, and Mr. McKenzie. One night that summer,

she “got in trouble” and “got grounded” for “having my boyfriend[’s] name on my

phone as baby.” She stated Mr. McKenzie was “mad” and told her she “was too

young to have somebody in my phone named that.”

      The next morning, P.D. was watching television in the living room when Mr.

McKenzie came downstairs and asked her to make him a sandwich. Her mother was

at work and her brother was at a friend’s house. P.D. went into the kitchen and began

making a sandwich. Mr. McKenzie came up behind her, stood very close to her, and

began “rubbing on” her left arm. He was wearing boxers and a shirt. P.D. testified

she felt “uncomfortable” and “could feel his penis against my back.” Mr. McKenzie
                                        –2–
took the sandwich upstairs and P.D. went back to the living room and continued

watching television.

      A short time later, Mr. McKenzie came back downstairs and sat on the living

room couch with her. He began tickling her, something he had never done before.

While tickling her, he picked her up, put her on the floor, pulled down the V-neck

shirt she was wearing, and began kissing both of her breasts. P.D. testified he then

“got on top of me” and “just started to dry hump me,” moving up and down on top

of her. She testified his penis was hard and felt it touching her vagina through her

shorts and underwear. After about a minute, he got up and went upstairs. P.D. stated

he “went and got bleach,” put it on a towel, and rubbed the towel on her breasts

where he had kissed her. He told her “not to tell anyone.”

      Another incident occurred on an evening that summer when P.D. was

watching television in the living room with her mother and Mr. McKenzie. P.D.

testified she and Mr. McKenzie were on the couch and her mother was on an air

mattress on the floor. P.D.’s mother fell asleep and began snoring. Mr. McKenzie

moved closer to P.D. and put his left arm around her. Then, he put his right hand

inside her shorts and underwear and rubbed her vagina “up and down” with his

fingers for several minutes. She testified she felt uncomfortable but did not try to

pull his hand out or tell him to stop because she “was scared what would happen.”

Several weeks later, she told a school friend about that incident. She did not tell her

mother until several months after her mother’s 2017 break-up with Mr. McKenzie.
                                         –3–
      The trial evidence also included testimony of a police detective who observed

P.D.’s 2017 forensic interview and a therapist’s general testimony about child sexual

abuse victims and perpetrators. After the jury returned guilty verdicts in both cases,

the State presented evidence regarding punishment.

      During the punishment phase, Mr. McKenzie pleaded “not true” to two

enhancement paragraphs. In support of those enhancement paragraphs, an

investigator from the Dallas County District Attorney’s office testified Mr.

McKenzie has three prior convictions for cocaine-related offenses, for which he

received prison sentences of fifteen years, seven years, and five years, respectively.

      Ms. Cooke testified the “nature” of her relationship with Mr. McKenzie was

“very violent.” She described an incident soon after they moved to Texas in which

Mr. McKenzie “picked me up, like off my feet with one hand, and threw me into a

wall and was choking me.” She was scared for herself and her children, who were

upstairs at the time and “knew what the story was.” She remained with Mr.

McKenzie because she was pregnant and had “nowhere to go.” After another violent

incident in Texas, she called police, but they were unable to find Mr. McKenzie. She

testified that at that point she decided to leave because “he just beat me up so bad

that night. He actually broke my arm. I was just scared for my life.”

      She moved back to Georgia with her children. Mr. McKenzie later came to

Georgia and told her “he would change.” They reconciled, but the violence

continued. She testified they had a final fight in which Mr. McKenzie “busted a
                                         –4–
chandelier over my head” and P.D. “came running to my defense” and told him “we

just want you to leave, nobody wants you here.”

      During defense cross-examination, Ms. Cooke testified:

      Q. And I believe you said that you called the police on numerous
      occasions [in Texas].
      A. No. I called the police on the last occasion, is what I said.
      Q. And we don’t have anything tangible from that police encounter, do
      we, no police reports, no charges?
      A. I have a police report, but there were no charges.
            [DEFENSE COUNSEL]: I’ve certainly not been provided with
            anything. May we approach, Your Honor?
            THE COURT: Yes.
            (Sidebar discussion was held)
            THE COURT: All right. I’m going to instruct the jury to totally
            disregard the last statement of the witness regarding any police
            report.
      Q. So you don’t have—you didn’t go to a doctor for that broken arm,
      did you?
      A. Yes.
      Q. I imagine there would be records associated with that, as well.
      A. Yes.
            [DEFENSE COUNSEL]: Your Honor, I’m afraid I have to object
            to this witness’s testimony and the introduction of all these
            extraneous matters that I have not been given notice of.
            THE COURT: Well, Counsel, from my conversation neither has
            the state.
            [DEFENSE COUNSEL]: The state is responsible for their case,
            Your Honor. They are responsible to turn over all relevant

                                         –5–
                documents to the defense.

      At that point, the court removed the jury from the courtroom. Outside the

jury’s presence, the prosecutor told the trial court he was “aware generally that [Mr.

McKenzie] had committed violence,” but was “not aware of any of those incidents

at all” and had “absolutely no reports” regarding them. Defense counsel requested

“a mistrial on the issue of punishment” because the State’s failure to disclose the

felonious extraneous acts Ms. Cooke described violated Mr. McKenzie’s due

process rights. Defense counsel argued there was no instruction that could cure the

harm done by Ms. Cooke’s testimony.

      Following a recess, the trial court overruled the mistrial motion. When the

jury returned, the trial court instructed them that “the testimony of Candice Cooke

on punishment is stricken from the record” and they were “not to mention, refer, or

discuss her testimony on punishment, period.” The trial court’s written jury charges

in each case instructed that if the jury found both enhancement paragraphs true, they

were to “assess the punishment of the Defendant at confinement in the Texas

Department of Criminal Justice for not more than ninety-nine (99) years or life nor

less than twenty-five (25) years.” The jury found both enhancement paragraphs true

in each case.

                The evidence is sufficient to support both convictions

      In determining the sufficiency of the evidence, the reviewing court considers

the evidence in the light most favorable to the verdict to determine whether any
                                            –6–
rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014).

The factfinder is the sole judge of the credibility of the witnesses and the weight to

be given their testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v.

State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

        A person commits indecency with a child if he engages in sexual contact with

a child under seventeen or causes the child to engage in sexual contact. See TEX.

PENAL CODE § 21.11(a)(1). “‘Sexual contact’ means the following acts, if committed

with the intent to arouse or gratify the sexual desire of any person: (1) any touching

by a person, 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).

        A person commits aggravated sexual assault if he intentionally or knowingly

causes the sexual organ of a child under fourteen to “contact or penetrate the mouth,

anus,    or   sexual   organ   of   another      person,   including   the   actor.”   Id.

§ 22.021(a)(1)(B)(iii), (2)(B); see also IslasMartinez v. State, 452 S.W.3d 874, 879–

80 (Tex. App.—Dallas 2014, pet. ref’d) (“contact” for aggravated sexual assault of

a child may occur through clothing). The testimony of a child victim alone is

sufficient to support a conviction for indecency with a child or aggravated sexual



                                           –7–
assault of a child. See TEX. CODE CRIM. PROC. art. 38.07; Revels v. State, 334 S.W.3d

46, 52 (Tex. App.—Dallas 2008, no pet.).

       In his first and second issues, Mr. McKenzie challenges the sufficiency of the

evidence to support his convictions, highlighting certain inconsistencies, the lack of

physical evidence, and the State’s presentation of only the “young complainant” as

a direct witness to the events. P.D. testified to facts constituting each charged

offense. See TEX. PENAL CODE §§ 21.11, 22.021. To the extent the record supports

conflicting inferences, “we presume that the jury resolved the conflicts in favor of

the verdict and defer to that determination.” Merritt v. State, 368 S.W.3d 516, 525–

26 (Tex. Crim. App. 2012); accord Jackson, 443 U.S. at 319. Considering the

evidence in the light most favorable to the verdict, we conclude the evidence is

sufficient to support Mr. McKenzie’s convictions. See Acosta, 429 S.W.3d at 624–

25; see also TEX. CODE CRIM. PROC. art. 38.07; Revels, 334 S.W.3d at 52.

The trial court did not abuse its discretion by denying the motion for mistrial

       In his third and fourth issues, Mr. McKenzie contends the trial court “erred in

denying [his] requested mistrial on the issue of punishment because the State did not

turn over discovery in relation to extraneous offenses related to the punishment

hearing that was not disclosed.”1 Mr. McKenzie argues “he was denied a substantial

right of due process and a fair punishment hearing in each cause number due to the

   1
     The parties agree Mr. McKenzie properly requested disclosure of evidence of extraneous offenses or
bad acts the State planned to use in the punishment phase and that he received no notice regarding the
complained-of extraneous offenses.
                                                 –8–
State’s witness testifying about extraneous felonies that were very prejudicial” and

that no instruction or striking of testimony could have cured the harm from testimony

for which he had received no disclosures.

      We review the denial of a mistrial motion for abuse of discretion. Hawkins v.

State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is the trial court’s

remedy for error that is “so prejudicial that expenditure of further time and expense

would be wasteful and futile” and is required only in extreme circumstances where

the prejudice is incurable. Id. A prompt instruction to disregard will ordinarily cure

error associated with an improper question and answer. Ovalle v. State, 13 S.W.3d

774, 783 (Tex. Crim. App. 2000); see also Hawkins, 135 S.W.3d at 77 (“In effect,

the trial court . . . determin[es] whether improper conduct is so harmful that the case

must be redone. Of course, the harm analysis is conducted in light of the trial court’s

curative instruction.”). “We generally presume the jury follows the trial court’s

instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex.

Crim. App. 2005).

      On a defendant’s timely request, the State must give the defendant notice of

intent to introduce evidence of extraneous bad acts during the punishment phase. See

TEX. CODE CRIM. PROC. art. 37.07; TEX. R. EVID. 404(b). “The admission of an

extraneous offense into evidence during the punishment phase when the State failed

to provide notice required by statute is non-constitutional error.” Gonzalez v. State,

337 S.W.3d 473, 485 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). In criminal
                                         –9–
cases, appellate courts must disregard non-constitutional error that does not affect

substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      The jury convicted Mr. McKenzie of two felony sex offenses committed at

different times against the same child who was the daughter of his significant other.

During the punishment phase, the State presented evidence of Mr. McKenzie’s prior

felony convictions, increasing the floor on punishment to twenty-five years and the

ceiling to life in prison. Not only did the jury’s fifty-five-year sentences fall below

the midpoint of the range (sixty-two years), they run concurrently. Also, the State

had previously disclosed numerous extraneous acts and offenses to the defense. And,

the trial court appears to have credited the State’s representation that it was

previously unaware of the specific incidents Ms. Cooke described.

      On this record, we conclude the trial court did not abuse its discretion by

determining the complained-of testimony was not so extreme as to be incurable by

an instruction to disregard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.

2009) (whether error requires mistrial must be determined by case’s particular facts);

see also Degollado v. State, No. 04-06-00404-CR, 2007 WL 2186915, at *2 (Tex.

App.—San Antonio Aug. 1, 2007, no pet.) (mem. op., not designated for publication)

(jury instruction to disregard cured any prejudice from extraneous bad act testimony



                                         –10–
that mother’s boyfriend charged with aggravated sexual assault of child had

assaulted mother).

                The assessed fines were not statutorily authorized

      In his fifth and sixth issues, Mr. McKenzie contends the punishment charge

in each case erroneously allowed the jury to assess a fine not authorized by penal

code section 12.42(d). The State agrees. Though the jury assessed fines in each case,

section 12.42(d) does not authorize any fine. See TEX. PENAL CODE § 12.42(d);

Biggers v. State, No. 07-18-00374-CR, 2020 WL 1146711, at *1 n.3 (Tex. App.—

Amarillo Mar. 6, 2020, no pet.) (stating section 12.42(d) provides for imprisonment

“without the possibility of a fine”). Thus, we must reform the trial court’s judgments

to “omit the punishment not authorized by law,” here, the $10,000.00 fines. See TEX.

CODE CRIM. PROC. art. 37.10(b); Nixon v. State, 483 S.W.3d 562, 565, 569 (Tex.

Crim. App. 2016).

                                         ***

      We decide against Mr. McKenzie on his first through fourth issues, and in his

favor on his fifth and sixth issues. We (1) modify the trial court’s judgments to delete

the $10,000.00 fine in each case and (2) affirm both judgments as modified.


                                                      /Cory L. Carlyle/
                                                      CORY L. CARLYLE
                                                      JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190405F.U05
                                         –11–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

WINSTON A. MCKENZIE,                          On Appeal from the 283rd Judicial
Appellant                                     District Court, Dallas County, Texas
                                              Trial Court Cause No. F17-20656-T.
No. 05-19-00405-CR          V.                Opinion delivered by Justice Carlyle.
                                              Justices Bridges and Molberg
THE STATE OF TEXAS, Appellee                  participating.

   Based on the Court’s opinion of this date, the trial court’s judgment is
MODIFIED to delete the $10,000.00 fine.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 7th day of April, 2020.




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

WINSTON A. MCKENZIE,                          On Appeal from the 283rd Judicial
Appellant                                     District Court, Dallas County, Texas
                                              Trial Court Cause No. F19-00104-T.
No. 05-19-00406-CR          V.                Opinion delivered by Justice Carlyle.
                                              Justices Bridges and Molberg
THE STATE OF TEXAS, Appellee                  participating.

   Based on the Court’s opinion of this date, the trial court’s judgment is
MODIFIED to delete the $10,000.00 fine.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 7th day of April, 2020.




                                       –13–
