                                  NO. 12-16-00228-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

TRAVIS JAMES ROGERS,                             §      APPEAL FROM THE 241ST
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Travis Rogers, Jr. appeals from his conviction for aggravated sexual assault of a disabled
individual. In two issues, Appellant contends that the evidence is legally insufficient and the
judgment is incorrect. We affirm the trial court’s judgment as modified.


                                         BACKGROUND
       The State charged Appellant with aggravated sexual assault of a disabled person.
Appellant pleaded “not guilty.”
       At trial, J.J. testified that she was walking to lunch when an Ameritex truck stopped and
the driver asked if she needed a ride. She accepted the offer. She identified Appellant as the
driver. She testified that Appellant stopped at Time It Lube, and asked J.J. if she would give him
a hug for giving her a ride. She agreed. J.J. testified that, when she hugged Appellant, he put his
hand down her pants and touched her vagina. Appellant asked J.J. to get back in the truck so he
could take her “down the road,” but J.J. declined. After Appellant left, she went inside Time It
Lube and the employees contacted the police. J.J. was seventeen years old at the time of the
offense.
       Michael Spier, the operating manager at Time It Lube, testified that he saw the Ameritex
truck parked on the side of the building. He saw a man and a woman embracing, but noticed that
the woman’s hands were hanging non-responsively by her side and the man’s hand was inside
the woman’s pants. Spier identified Appellant as the man he saw. Shortly thereafter, the woman
entered Time It Lube, and appeared disheveled, in shock, distant, nervous, and at a loss for what
to say. She asked for help, and stated, “Somebody just touched me in a bad place.” When Spier
asked the woman if she had wanted the man to touch her, she replied “no.” Spier called 9-1-1.
He testified that he had seen the woman on other occasions and, based on how she walked and
carried herself, it was fairly obvious that she has “special needs.”
       Officer Debra Daily with the Whitehouse Police Department testified that, when she
arrived at Time It Lube, J.J. was crying, hysterical, and shaking. Daily transported J.J. and her
mother to the police department, during which J.J. screamed, shook, and was very distraught and
upset. Daily testified that J.J. cried off and on during the entire process.
       Lieutenant Scott Bradley with the Whitehouse Police Department testified that he
arranged for a forensic interview of J.J. by the Child Advocacy Center (CAC) because J.J. was
seventeen and mentally handicapped. He felt an interview by CAC would be better because of
J.J.’s maturity level. He testified that J.J.’s intelligence appeared to be below average. He also
learned that she had been prescribed medication for epilepsy. He testified that the information he
received was sufficient to meet the law’s definition of a “disabled individual.”
       Jennifer Kelly with the CAC testified that she interviewed J.J., who appeared nervous and
unkempt, and had some intellectual disabilities. Nor was J.J. able to articulate the difference
between the truth and a lie. J.J. told Kelly about being offered a ride, driven to Time It Lube,
and asked for a hug. She told Kelly that Appellant put his hand down her pants. Because J.J.
struggled to identify which body part Appellant touched, Kelly showed her an anatomical
drawing and had to help J.J. spell the word “vagina” on the drawing.
       Dr. Noel Baker, J.J.’s doctor, testified that J.J. takes epilepsy medication and suffers from
encephalopathy, which means that her brain does not work properly and she cannot function as
well as other people. Dr. Baker testified that, although J.J.’s condition impacts her ability to
adequately care for herself, this does not mean that she is non-functioning, unable to hold a job,
or unable to live an independent life.
       Doris Pitts, the executive director of special programs at Whitehouse Independent School
District, testified that J.J. meets the criteria for pervasive developmental disorder (PDD), which
falls under the autism spectrum. She testified that a person with autism based on PDD is



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considered disabled for educational purposes. She acknowledged that J.J. is functional. Julie
Smith, a licensed specialist in school psychology with the Whitehouse Independent School
District, testified J.J. struggles to keep up with the classroom pace and understand what is
expected of her.     Smith noticed that J.J. struggled with verbal instructions, watched her
classmates for cues on what to do, fell behind the other students, and used more concrete than
critical thinking.
         At the conclusion of trial, the jury found Appellant guilty of aggravated sexual assault
of a disabled person, and sentenced Appellant to imprisonment for eleven years. This appeal
followed.


                                 SUFFICIENCY OF THE EVIDENCE
        In his first issue, Appellant challenges the legal sufficiency of the evidence to support his
conviction. He contends that the State failed to prove that J.J. was a disabled individual.
Standard of Review
        When reviewing the sufficiency of the evidence, we determine whether, considering all
the evidence in the light most favorable to the verdict, the jury was rationally justified in finding
guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the accused’s guilt. Id.
Analysis
        The State charged Appellant with intentionally and knowingly causing the penetration of
the female sexual organ of J.J., a disabled person, with his hand and finger and without J.J.’s
consent. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (2)(C) (West Supp. 2016). A
“disabled individual” is “a person older than 13 years of age who by reason of age or physical or
mental disease, defect, or injury is substantially unable to protect the person’s self from harm or
to provide food, shelter, or medical care for the person’s self.” Id. § 22.021(b)(3).
        In this case, although the jury heard evidence that J.J. is functional, the jury also heard
evidence that she suffers from both physical and mental defects, specifically, epilepsy and



                                                    3
autism. J.J.’s school records classify her as disabled, i.e., autistic. Additionally, the jury heard
the following testimony: (1) based on his personal observations, Spier testified that J.J. obviously
has “special needs,” (2) Lieutenant Bradley testified that J.J. was handicapped, appeared to have
below average intelligence, took epilepsy medication, and met the definition of a “disabled
individual,” (3) Kelly testified that J.J. had some intellectual disabilities, had difficulty
identifying body parts without the aid of an anatomical drawing, and needed help spelling, (4)
Dr. Baker testified that J.J. takes epilepsy medication, suffers from encephalopathy, and does not
function as well as others, and that J.J.’s brain does not work properly, (5) Pitts testified that J.J.
meets the criteria for PDD and is, therefore, a disabled person for educational purposes, and (6)
Smith testified that J.J. struggles to keep up in class and understand verbal instructions, and does
not think critically. Based on this evidence, and the fact that J.J. accepted a ride from a stranger,
the jury could reasonably believe that J.J. suffers from a physical or mental disease or defect that
renders her substantially unable to protect herself from harm. See id.; see also Morgan v. State,
365 S.W.3d 706, 708-09 (Tex. App.—Texarkana 2012, no pet.) (finding evidence sufficient to
support aggravated sexual assault of a disabled individual when jury could reasonably infer that
complainant’s mental disease prevented him from protecting himself from harm).
       Accordingly, viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that the jury was rationally justified in finding, beyond a reasonable doubt, that
Appellant intentionally and knowingly caused the penetration of the female sexual organ of J.J.,
a disabled person, with his hand and finger and without J.J.’s consent. See TEX. PENAL CODE
ANN. § 22.021(a)(1)(A)(i), (2)(C), (b)(3); see also Brooks, 323 S.W.3d at 899. Because the
evidence is legally sufficient to support Appellant’s conviction for aggravated sexual assault of a
disabled individual, we overrule issue one.


                                              JUDGMENT
       In his second issue, Appellant maintains that the trial court’s judgment incorrectly
reflects a plea of “guilty” to the charged offense. At trial, Appellant pleaded “not guilty” to the
offense of aggravated sexual assault of a disabled individual. The trial court’s charge instructed
the jury that Appellant pleaded “not guilty.” However, the trial court’s judgment states that
Appellant pleaded “guilty.” On appeal, Appellant asks this Court to reform the judgment to




                                                  4
reflect a plea of “not guilty.”           The State concedes that the judgment incorrectly reflects
Appellant’s plea.
         We have the authority to modify the judgment to make the record speak the truth when
we have the necessary data and information to do so. Ingram v. State, 261 S.W.3d 749, 754
(Tex. App.—Tyler 2008, no pet.); Davis v. State, 323 S.W.3d 190, 198 (Tex. App.—Dallas
2008, pet. ref’d). Texas Rule of Appellate Procedure 43.2 expressly authorizes an appellate
court to modify the trial court’s judgment. TEX. R. APP. P. 43.2(b). In this case, we have the
necessary data and information to modify the judgment to reflect that Appellant pleaded “not
guilty” to the charged offense. Accordingly, we sustain Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s first issue, but having sustained Appellant’s second issue,
we modify the judgment to replace “Guilty” with “Not Guilty” in the “Plea to Offense” portion
of the judgment, and affirm the trial court’s judgment as modified.

                                                                    GREG NEELEY
                                                                       Justice

Opinion delivered April 5, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 5, 2017


                                         NO. 12-16-00228-CR


                                     TRAVIS JAMES ROGERS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0183-16)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to replace “Guilty” with “Not Guilty” in the “Plea to
Offense” portion of the judgment; and as modified, the trial court’s judgment is affirmed; and
that this decision be certified to the trial court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
