                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00114-CR
                               NO. 02-12-00115-CR


MANNIX LASILMON TODD                                              APPELLANT

                                          V.

THE STATE OF TEXAS                                                       STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      In two issues, appellant Mannix Lasilmon Todd appeals his convictions for

one count of indecency with a child by contact and two counts of aggravated

sexual assault of a child. 2 We affirm.



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 21.11(a)(1),             (c)   (West   2011),
§ 22.021(a)(1)(B)(iii), (2)(B) (West Supp. 2012).
                               Background Facts 3

       In 2010, Krystal lived with, among other people, her two daughters, Kelly

and Kimberly, at a house in Arlington. 4 Appellant initially lived across the street

from Krystal with his common law wife, Sandra Fields. Appellant and Krystal

became friends, and in June 2010, while appellant was still living with Fields, he

and Krystal began a romantic relationship. Appellant moved in with Krystal in

August 2010. According to Krystal, her children viewed appellant as a father

figure. 5

       One day in November 2010, when Krystal came home from work, Kelly,

who was six years old at that time, told Krystal that the previous night, appellant

had stuck his “middle part,” meaning his sexual organ, in Kelly’s “middle part,”

meaning her vagina. Krystal, who was shocked at what Kelly had said, asked

Kelly several times if she was sure about the outcry, and Kelly said that she was.




       3
        The facts recited in this section comprise the testimony of the State’s
witnesses. Witnesses called by appellant provided contradicting facts that we
will discuss below.
       4
       To protect the anonymity of the children who were named in the
indictments and who testified at trial, we will use aliases to refer to them and to
their mother. See Daggett v. State, 187 S.W.3d 444, 446 n.3 (Tex. Crim. App.
2005); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel
Op.] 1982).
       5
     Kelly testified that she called appellant “Daddy.”         Kimberly testified,
however, that she did not like appellant being in the house.


                                         2
Krystal revealed the outcry to appellant and told him to “get [his] stuff and get

out.” 6 Krystal then examined Kelly and saw “a rip” in her sexual organ.

      Krystal took Kelly to a children’s hospital in Fort Worth, where a nurse

examined her. Later that day, Krystal asked Kimberly, who was ten years old in

November 2010, about whether appellant had ever inappropriately touched her,

and Kimberly said that appellant had kissed her mouth and had touched her

“private area,” meaning her vagina. After the police learned of Kelly’s outcry, an

officer collected, among other items, the panties that Kelly had worn on the night

of the alleged sexual assault. Kelly spoke with Charity Henry, a child forensic

interviewer, about her allegations concerning appellant.

      A grand jury indicted appellant with two counts of aggravated sexual

assault (by causing Kelly’s sexual organ to contact his sexual organ) and one

count of indecency with a child (by touching Kimberly’s genitals with the intent to

arouse or gratify his sexual desire). Appellant pled not guilty to all charges.

During his opening statement and his closing argument, appellant’s counsel

contended that Krystal had manipulated her daughters to say that appellant had

been sexually inappropriate with them.

      The jury convicted appellant of all three charges. Appellant pled true to a

repeat offender notice in his indictment, and after the jury heard one witness


      6
        According to Krystal, while Kelly told her about what had happened with
appellant, appellant was across the street because he was planning to go with
Fields to pick up Fields’s son from prison.


                                         3
testify in the punishment phase of the trial, it found that the repeat offender notice

was true and assessed appellant’s punishment at confinement for life for the two

aggravated sexual assault convictions and fifty years’ confinement for the

indecency with a child by contact conviction.           The trial court ordered the

sentences to run concurrently, and appellant brought these appeals.

                              Evidentiary Sufficiency

      We construe appellant’s first issue as a contention that the evidence is

insufficient to support his convictions. 7      In our due-process review of the

sufficiency of the evidence to support a conviction, we view all of 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 crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise

v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This standard gives full

play to the responsibility of the trier of fact to resolve conflicts in the testimony, to

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

ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State,

350 S.W.3d 588, 595 (Tex. Crim. App. 2011).




      7
       Appellant contends in the title of his first issue that the trial court should
have granted his motion for a directed verdict. When the State rested at trial,
however, appellant’s counsel said that the “State’s evidence [was] such that a
directed verdict would be inappropriate.” In the body of appellant’s first issue, he
contends that the “evidence is legally insufficient to sustain all of the convictions.”


                                           4
      To obtain a conviction for indecency with a child by contact under the facts

of this case, the State was required to prove that with the intent to arouse or

gratify the sexual desire of any person, appellant touched Kimberly’s genitals

(including through her clothing). See Tex. Penal Code Ann. § 21.11(a)(1), (c)(1);

Connell v. State, 233 S.W.3d 460, 465–66 (Tex. App.—Fort Worth 2007, no pet.)

(mem. op.). Kimberly testified that on the day before Kelly’s outcry, appellant

had rubbed Kimberly’s private part over her clothing and had kissed her lips while

she was in Krystal’s room and while Krystal was in the bathroom. 8 To obtain

convictions for aggravated sexual assault under the facts of this case, the State

was required to prove that on two occasions, appellant intentionally or knowingly

caused Kelly’s sexual organ to contact his sexual organ. See Tex. Penal Code

Ann. § 22.021(a)(1)(B)(iii), (2)(B); Kelly v. State, 321 S.W.3d 583, 590 (Tex.

App.—Houston [14th Dist.] 2010, no pet.).      Kelly, who used an anatomically

correct doll during her testimony, testified that while she was sleeping in an

upstairs game room with her siblings and a cousin, appellant entered the game

room and touched her private part with his hand and with his private part. Kelly

said that this happened on two different nights. Kelly’s and Kimberly’s testimony

alone was sufficient to support appellant’s convictions. 9     See Connell, 233



      8
       Kimberly also testified that she had seen appellant kiss Kelly’s mouth.
      9
       Appellant agreed during his testimony that Kelly and Kimberly appeared to
be credible when they testified. He also conceded that he had several prior
convictions, including five felony convictions. The trial court instructed the jury

                                        5
S.W.3d at 466; Johnston v. State, 230 S.W.3d 450, 455 (Tex. App.—Fort Worth

2007, no pet.).    The jury was free to believe all of Kelly’s and Kimberly’s

testimony. See Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth

2006, no pet.) (“[T]he jury is free to accept or reject any or all of the evidence of

either party, and any or all of the testimony of any witness.”) (citing Hernandez v.

State, 161 S.W.3d 491, 500 & n.28 (Tex. Crim. App. 2005)).

      Along with Kelly’s and Kimberly’s testimony, other evidence supports the

jury’s findings of appellant’s guilt. For example, DNA from the inside crotch area

of the panties that Kelly wore on the night before her outcry to Krystal matched a

sample of appellant’s DNA. 10 Also, Kelly told the nurse who examined her that

appellant had put his private area in her private area, that it had “hurt during and

then after when she went to the bathroom,” and that she had seen blood when

“she wiped herself.” The nurse found two recent tears at the bottom of Kelly’s

sexual organ, and the nurse concluded that the tears were consistent with Kelly’s

outcry.




that it could consider the convictions in “passing upon the weight” of his
testimony.
      10
         The forensic biologist who examined Kelly’s panties testified that there
was a “very little amount of DNA from a male” on the panties but that the partial
male DNA profile from the panties matched appellant’s DNA. The forensic
biologist stated that one in 595 African American males would have matched the
partial DNA profile from Kelly’s panties, that one in 1,091 Caucasian males would
have matched the profile, and that one in 567 Hispanic males would have
matched the profile.


                                         6
      Furthermore, the jury could have reasonably inferred that the evidence

revealed a possible motive—appellant’s unfulfilled sexual appetite—for one of

appellant’s sexual assaults of Kelly. Krystal said that she had sex with appellant

on the night before Kelly’s outcry. Krystal testified, however, that she stopped

the intercourse before appellant ejaculated because he was drunk, the sex was

taking too long to complete, and she was tired. According to Krystal, when she

and appellant stopped having sex, she took a shower, and appellant left the room

and went upstairs, where Kelly slept. When Krystal got out of the shower, she

saw appellant walking back down the stairs with a cigarette in his mouth.

      We recognize that the witnesses called by the State and by appellant

produced some evidence that a hypothetical factfinder could have weighed

against findings of guilt. For example, the nurse who examined Kelly did not find

semen in Kelly’s sexual organ. The forensic biologist stated that she did not find

spermatozoa on the swabs of the panties and that the male DNA profile on the

panties could have gotten there from someone who had washed and folded

them. Appellant testified that he washed the clothes at Krystal’s house, and

Krystal testified that while she worked, appellant helped around the house by,

among other things, washing clothes. Kimberly testified that appellant was not

drunk on the night that he rubbed her private part (which was the same night

when, according to Krystal’s testimony, appellant was drunk and sexually

assaulted Kelly).




                                        7
       Fields testified that she and Krystal had a tense relationship, that Krystal

was possessive in her relationship with appellant, and that Krystal had an

“influence” over her children. According to Fields, on the day of Kelly’s outcry,

Fields and appellant were in the process of resuming their relationship, and

Krystal told appellant that if he went with Fields to pick up Fields’s son from

prison, “he would be sorry.”     Fields expressed her belief that appellant was

charged with the offenses because Krystal got mad at him and persuaded her

children to lie.

       Appellant testified that he did not commit sexual acts with Kelly or

Kimberly, that he did not even go upstairs on the night of his alleged sexual

assault of Kelly, and that instead, he slept in bed with Krystal that whole night.

He also expressed that Krystal is “very emotional,” that she did not like his

continued relationship with Fields, that she coerced Kelly and Kimberly to say

that appellant had been sexually inappropriate with them, and that he was never

able to speak with Kelly and Kimberly about their allegations.

       Although these facts could have caused a hypothetical jury to question the

credibility or weight of the evidence supporting appellant’s guilt, it is evident that

the jury in this case did not do so because it convicted appellant. See Castillo v.

State, No. 08-08-00332-CR, 2010 WL 4117674, at *4 (Tex. App.—El Paso Oct.

20, 2010, no pet.) (not designated for publication) (“In finding Appellant guilty of

the charged offenses, the jury implicitly resolved the conflicts [in the evidence] in

favor of conviction.”); see also Denman v. State, 193 S.W.3d 129, 132–33 (Tex.


                                          8
App.—Houston [1st Dist.] 2006, pet. ref’d) (holding that the jury’s conviction of a

defendant established its implicit rejection of the defendant’s self-defense

theory). The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdicts and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

       Viewing the evidence in the light most favorable the jury’s verdicts of

conviction, we hold that a rational factifinder could have found the essential

elements of appellant’s crimes beyond a reasonable doubt. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903. Thus, we conclude that

the evidence is sufficient to support appellant’s convictions, and we overrule his

first issue.

                           Alleged Evidentiary Error

       In his second issue, appellant contends that the trial court committed

harmful error by overruling his objections to the admission of a recording of

Kelly’s forensic interview. During Kelly’s testimony, appellant’s counsel asked

her if she remembered stating in a recorded interview that appellant did not kiss

her, and Kelly testified that she did not remember making that statement. When


                                        9
the State sought admission of a DVD of Kelly’s forensic interview as a “prior

consistent statement of a witness after the declarant’s testimony,” appellant

objected, stating,

      [T]he door has not been opened for the introduction of . . . the entire
      interview of [Kelly] by this witness because only to the extent that
      this DVD . . . rebuts the charge of inconsistent testimony would [it]
      be relevant. The rest of it would be completely irrelevant except for
      the portions that are simply repetitious of her testimony while she’s
      on the stand.

              To the extent that we’ve opened the door for a portion of this,
      it’s for a portion only and that is on the subject of whether or not
      [Kelly] told this witness during this interview that the Defendant had
      kissed her.

The State responded to this objection by contending that the DVD was also

admissible because it was offered to rebut a charge of recent fabrication or

improper influence or motive. The prosecutor explained that appellant’s “entire

theory of th[e] case” was that Krystal had persuaded her daughters to lie.

Appellant further objected that admission of the DVD was repetitious and

constituted “improper bolstering” of Kelly’s testimony, but the trial court overruled

appellant’s objections, admitted the exhibit, and allowed the State to play the

DVD for the jury.

      Even if we were to assume that the trial court abused its discretion by

admitting the recording of Kelly’s interview, we would be required to determine

whether that error harmed appellant. See Tex. R. App. P. 44.2. Errors in the




                                         10
admission of evidence are generally of a nonconstitutional dimension. 11 James

v. State, 335 S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.); Stewart v.

State, 221 S.W.3d 306, 310 (Tex. App.—Fort Worth 2007, no pet.). Thus, in

examining the harmfulness of such an alleged error, we apply rule of appellate

procedure 44.2(b) and disregard the error if it did not affect appellant’s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

      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) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have “fair assurance that the error did not influence

the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998); see also Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)

(stating that in determining harm, we may ask whether there is a reasonable

possibility that the error “moved the jury from a state of nonpersuasion to one of

persuasion as to the issue in question”), cert. denied, 532 U.S. 944 (2001).

      In reviewing whether a nonconstitutional error caused harm, we review the

record as a whole, including any testimony or physical evidence admitted for the

      11
        Appellant does not contend that he had a constitutional right that was
affected by the admission of the recording.


                                         11
jury’s consideration, the nature of the evidence supporting the verdict, and the

character of the alleged error and how it might be considered in connection with

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002). We may also consider the jury instructions, the State’s theory and

any defensive theories, whether the State emphasized the error, closing

arguments, and even voir dire, if applicable. Id. at 355–56.

      Concerning harm, appellant argues on appeal only that this court should

“play [the recording] for itself in determining whether [the recording] . . .

constituted harmful error.” 12 Appellant does not explain why the admission of the

recording was harmful when considered together with the other evidence at trial.

      As the State argues, even if the trial court abused its discretion by

admitting the recording of Kelly’s interview, in which she stated that appellant

sexually assaulted her twice, the jury received similar evidence, without

objection, from three witnesses at trial (Kelly, Krystal, and the nurse who

examined Kelly on the day of her outcry). We find it unlikely that the jury was

inclined to reject Kelly’s story of sexual abuse, as related by these three

witnesses, but changed to a decision of accepting the story based simply upon

hearing it again in the recording. See Matz v. State, 21 S.W.3d 911, 912–13

      12
         We have done so. In the first few minutes of her recorded interview,
Kelly discussed matters unrelated to appellant’s charges. Later, Kelly identified a
private part on a girl doll and said that appellant had put his private area on her
private area on two occasions. Kelly’s remaining statements in the video are
consistent with, but more detailed than, her testimony. Appellant argues in his
brief that Kelly’s statements on the video were repetitive of her testimony.


                                        12
(Tex. App.—Fort Worth 2000, pet. ref’d) (“Because the videotape is cumulative of

[a sexual assault complainant’s] properly admitted testimony on the same issue,

even if the trial court erred in admitting the videotape, we must disregard the

error because it could not have affected Appellant’s substantial rights.”); see also

Jiminez v. State, No. 07-07-00389-CR, 2009 WL 3102010, at *6 (Tex. App.—

Amarillo Sept. 29, 2009, pet. ref’d) (mem. op., not designated for publication)

(explaining that in “situations where an improperly admitted videotape ‘essentially

repeated the testimony’ of the victim, when the victim also testifies and the

videotape is cumulative of the victim’s properly admitted testimony on the same

issue, courts often disregard the error reasoning that it could not have affected

the appellant’s substantial rights”); Shaw v. State, 122 S.W.3d 358, 364 (Tex.

App.—Texarkana 2003, no pet.) (“Because the State sufficiently proved the fact

to which the hearsay relates by other competent and unobjected-to evidence[,]

. . . we hold the admission of the hearsay constituted nonreversible error.”);

Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d) (holding that the improper admission of outcry testimony was harmless

when similar testimony was admitted through the victim, a pediatrician, and

medical records); Jensen v. State, 66 S.W.3d 528, 535–36 (Tex. App.—Houston

[14th Dist.] 2002, pet. ref’d) (op. on reh’g) (citing Matz and holding similarly to the

decision in that case). Conversely, we find it unlikely that the jury was inclined to

accept appellant’s defensive theory—that Krystal persuaded her daughters to lie

during all stages of the case, including during the forensic interview, about


                                          13
appellant’s sexual abuse of them—but decided to reject the theory upon

watching the recording of the forensic interview. Given that appellant’s defensive

theory, as expressed in his closing argument, was not that Kelly and Kimberly

were intentionally lying about appellant’s sexual abuse but instead that Krystal

had put ideas “into [her daughters’] heads,” Krystal’s testimony, and her

credibility, was likely more significant in determining appellant’s guilt than the

recording of Kelly’s interview.

      In the State’s opening statement, the prosecutor did not mention the

recording.   During the State’s closing argument, prosecutors mentioned the

recording, but they did not indicate that the recording was more important than

the other evidence supporting appellant’s guilt.        Furthermore, as explained

above, the jury could have reasonably concluded that the DNA found on the

inside crotch of Kelly’s panties, along with the physical evidence of Kelly’s

injuries to her sexual organ (which the nurse testified were consistent with Kelly’s

outcry) corroborated her testimony.

      For all of these reasons, we conclude that even if the trial court abused its

discretion by admitting the recording of Kelly’s forensic interview, the trial court’s

ruling did not substantially and injuriously affect the jury’s verdicts and was

therefore not harmful. See Tex. R. App. P. 44.2(b); King, 953 S.W.2d at 271.

We overrule appellant’s second issue.




                                         14
                                  Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s judgments of

conviction.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 11, 2013




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