Affirmed in Part; Reversed and Remanded in Part; and Memorandum
Opinion filed August 14, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00057-CR
                             NO. 14-13-00058-CR
                             NO. 14-13-00059-CR
                             NO. 14-13-00060-CR

                  PATRICK MONROE BROWN, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 221st District Court
                         Montgomery County, Texas
                   Trial Court Cause No. 12-05-05599-CR

                 MEMORANDUM                     OPINION


      A jury convicted appellant of three counts of indecency with a child by
sexual contact and one count of aggravated sexual assault of a child. On the count
of aggravated sexual assault, the jury sentenced appellant to confinement for
eleven years in the Institutional Division of the Texas Department of Criminal
Justice. For each count of indecency with a child, the jury sentenced appellant to
confinement for five years in the Institutional Division of the Texas Department of
Criminal Justice, suspended the sentence and placed appellant under community
supervision for five years. The trial court granted the State’s motion to stack and
ordered the sentences to run consecutively. In each case, appellant filed a notice of
appeal.

      Appellant raises three issues on appeal: (1) the trial court erred when it
cumulated the sentences and ordered them to run consecutively; (2) the evidence is
insufficient to support the jury’s verdicts; and (3) the trial court erred when it
denied appellant’s motion for mistrial. We reverse and remand only the portion of
the judgments imposing consecutive suspended sentences; in all other respects, we
affirm the trial court’s judgments.

                                          BACKGROUND

      Appellant married Andrea Barry in 1996.1                   Andrea had six children,
including two sons. The oldest son had three daughters, Dorian Barry, Erin Barry,
and Gabrielle Barry, and one son. Another of Andrea’s sons had two daughters,
Arlene Barry and Cindy Barry, and two sons. Andrea’s grandchildren and their
parents visited her and appellant at their home every Sunday after church and on
many other occasions.

      Prior to 2010, three outcries were made. When she was about five, Gabrielle
made an outcry that appellant had put his hand down the front of her panties.
Andrea, Gabrielle and her parents met with appellant and he claimed Gabrielle put
his hand in her pants. The family enacted “rules” for appellant. Subsequently,
Cindy told her parents that appellant licked her leg. The grandchildren were

      1
          On appeal, we have assigned pseudonyms to protect the victims’ identities.

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questioned and no one else came forward. Around 2002 or 2003, Arlene’s brother
told their father that appellant had his hand down the back of Arlene’s pants,
rubbing her bottom. Arlene denied the incident to her father.

      Appellant and Andrea divorced in 2008. In 2010, Arlene made an outcry to
her father that appellant had molested her. Arlene stated the incident that she had
denied earlier had occurred and told her father of other instances of abuse. The
family met and questioned the girls about any inappropriate touching by appellant.
Arlene, Cindy and Gabrielle claimed that sexual abuse by appellant had occurred
and all three went to Children’s Safe Harbor and gave interviews. Approximately
a year later, Erin came forward and claimed appellant had sexually abused her.

      Appellant was charged with three counts of indecency with a child by sexual
contact and three counts of aggravated sexual assault of a child. The jury found
appellant guilty on all three counts of indecency with a child by sexual contact.
The children were Gabrielle, Erin and Arlene. As to the three counts of aggravated
sexual assault of a child, the jury found appellant guilty of one count, as to Erin,
and not guilty on the other two counts.

      The jury sentenced appellant to prison for five years on each count of
indecency with a child, suspended, and eleven years on the count of aggravated
sexual assault. The trial court stacked the five-year suspended sentences onto the
eleven-year prison sentence. This appeal followed.

                            CONSECUTIVE SENTENCING

      At trial, defense counsel objected to the stacking order on the grounds article
42.08 of the Texas Code of Criminal Procedure limits stacking suspended
sentences to ten years. Tex. Code Crim. Proc. § 42.08. Subsection (a) allows the
trial court to order sentences to run consecutively, “provided, however, that the


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cumulative total of suspended sentences in felony cases shall not exceed 10 years.”
Tex. Crim. Proc. Code Ann. art. 42.08(a). Thus article 42.08(a) does not permit
the total years of cumulated community supervision to exceed 10 years.

      In this case, the trial court stacked three five-year suspended sentences, for a
cumulative total of 15 years. The State agrees that because the cumulative total of
the stacked suspended sentences exceeds 10 years, the trial court’s order violates
article 42.08(a). See Medina v. State, 7 S.W.3d 876, 879-80 (Tex. App.—Houston
[1st Dist.] 1999, no pet.). Accordingly, we sustain appellant’s first issue and
reverse only that portion of the trial court’s judgments ordering the five-year
suspended sentences to be served consecutively and remand for rendition of
judgment in compliance with article 42.08 of the Code of Criminal Procedure. See
Sullivan v. State, 387 S.W.3d 649, 653 (Tex. Crim. App. 2013); and Ewing v.
State, 157 S.W.3d 863, 870 (Tex. App.—Fort Worth 2005, no pet.).

                          SUFFICIENCY OF THE EVIDENCE

      In his second issue, appellant contends the evidence is factually insufficient
to support his conviction. Since the Court of Criminal Appeals’ decision in Brooks
v. State, 323 S.W .3d 893, 894–95, 912–13 (Tex. Crim. App. 2010) (4–1–4
decision), the legal-sufficiency standard set forth in Jackson v. Virginia, 443 U.S.
307 (1979), is the only standard that we apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is required
to prove beyond a reasonable doubt. See Griego v. State, 337 S.W.3d 902, 903
(Tex. Crim. App. 2011); Brooks, 323 S.W .3d at 894–95, 912–13.               Because
appellant cites Jackson, we will construe his issue as a challenge to the legal
sufficiency of the evidence.




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       The jury found appellant guilty as follows:

       Indecency with a Child by Sexual Contact, that appellant “did then and there
with intent to arouse and gratify the sexual desire of the defendant, engage in
sexual contact by touching the genitals of [Gabrielle], a child younger than 17
years of age and not the spouse of the defendant . . .”

       Aggravated Sexual Assault of a Child, that appellant “did then and there
intentionally or knowingly cause the penetration of the sexual organ of [Erin], a
child who was then and there younger than 14 years of age, by inserting his finger .
. .”

       Indecency with a Child by Sexual Contact, that appellant “did then and there
with intent to arouse and gratify the sexual desire of the defendant, engage in
sexual contact by touching the genitals of [Erin], a child younger than 17 years of
age and not the spouse of the defendant . . .”

       Indecency with a Child by Sexual Contact, that appellant “did then and there
with intent to arouse and gratify the sexual desire of the defendant, engage in
sexual contact by touching the genitals of [Arlene], a child younger than 17 years
of age and not the spouse of the defendant . . .”

       When determining whether evidence is legally sufficient to support the
verdict, we view all of the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom,
whether any rational fact finder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. at 318–19). We do not sit as a
thirteenth juror and may not substitute our judgment for that of the fact finder by
re-evaluating weight and credibility of the evidence. Isassi v. State, 330 S.W.3d


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633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact
finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. The verdict may not
be overturned unless it is irrational or unsupported by proof beyond a reasonable
doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). Therefore,
if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614
(Tex. Crim. App. 1997). A victim’s uncorroborated testimony may support a
conviction for sexual assault if, at the time of the alleged offense, the victim was
17 years of age or younger. See Tex. Code of Crim. Proc. art. 38.07(a), (b)(1).

      At the time of the offenses, Gabrielle, Erin, and Arlene were all younger
than 17. Therefore no corroboration was required, including physical evidence.

      Gabrielle testified that appellant touched her vagina under her clothes and
would put the end of his finger and rub her vagina when she sat in his lap to watch
television. Erin testified that appellant penetrated her vagina with his finger. She
also testified that appellant put his hand down her pants and touched the inside and
outside of her vagina. Arlene testified that appellant touched her vagina on the
outside of her clothes. Appellant makes no claim that he lacked intent to arouse or
gratify his sexual desire when he committed the three counts of indecency with a
child by sexual contact. See Cunningham v. State, 726 S.W.2d 151, 154 (Tex.
Crim. App. 1987); and McKenzie v. State, 617 S.W.2d 211, 215 n. 15 (Tex. Crim.
App. 1981) (an accused’s intent may be inferred from evidence of the surrounding
circumstances, including his conduct). Appellant’s complaint is that there are
inconsistencies in the complainant’s “evolving stories.”      The fact that Arlene
initially denied any abuse and Erin did not make an outcry until a year after
Arlene, Cindy, and Gabrielle made their claims does not render the evidence

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legally insufficient.    The evidence was before the jury and it was their
responsibility to determine the weight and credibility of the testimony.

      We conclude that from the evidence a rational trier of fact could have found
the essential elements of the offenses beyond a reasonable doubt. Accordingly, the
evidence is legally sufficient to support appellant’s conviction in each case.
Appellant’s second issue is overruled.

                                DENIAL OF MISTRIAL

      Appellant’s final issue argues the trial court erred when it failed to grant a
mistrial during the testimony of Gabrielle.      Appellant notes an instruction to
disregard was requested and then complains the trial court failed to admonish
Gabrielle. We will construe this complaint to refer to the failure to give an
instruction to disregard since no request to admonish Gabrielle was made.

      The record reflects the following exchange occurred when the State was
questioning Gabrielle:

      Q:     [Gabrielle], are you making this stuff up today?

      A:     No, ma’am.
      Q:   And are you just here to tell the jury about what happened to
      you?
      A:    I am here because I want — he can’t do stuff like that and just
      not — just be able to go and live. I mean, I am sure there has got to
      be other girls he did it to that didn’t come forward and —
      [Defense Counsel]: We would object to narrative and ask the jury to
      disregard the last statement.
      THE COURT: Overruled as to narrative objection.
      You may answer.
      ...



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      [Defense Counsel]: We would object to her statement of what he
      must have done to other girls. We feel like that certainly violates our
      motion in limine regarding any possible extraneous offenses.
      THE COURT: I sustain the objection as to that.
      [Defense Counsel]: And we would ask that the jury disregard that
      statement and move for a mistrial.
      THE COURT: That will be overruled.
      ...
      THE COURT: Hold on. Just so you know, I don’t think -- it doesn’t
      seem like the State is trying to elicit that statement.
      [Defense Counsel]: I understand that.
      THE COURT: . . . So I will sustain your objection, but I won’t grant a
      mistrial.

      The general rule is that a complaining party must first object, and if the
objection is sustained, must then ask for an instruction to disregard. If the
instruction is given, counsel must then move for a mistrial. Barletta v. State, 994
S.W.2d 708, 714 (Tex. App.—Texarkana 1999, pet. ref’d) (citing Nethery v. State,
692 S.W.2d 686, 701 (Tex. Crim. App. 1985); and Coe v. State, 683 S.W.2d 431,
436 (Tex. Crim. App. 1984). If appellant does not pursue the objection to an
adverse ruling, error is not preserved for appellate review. Ferree v. State, 416
S.W.3d 2, 7 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Tex. R.
App. P. 33.1 and Cienfuegos v. State, 113 S.W.3d 481, 488–89 (Tex.App.—
Houston [1st Dist.] 2003, no pet.) (concluding that trial court's ambiguous response
of “I understand,” did not constitute an adverse ruling)). See also Ramirez v. State,
815 S.W.2d 636, 643 (Tex. Crim. App. 1991).

      The trial court granted appellant’s objection to Gabrielle’s testimony and
denied appellant’s motion for a mistrial. However, the record does not reflect the
trial court ruled on the request for an instruction to disregard. Accordingly, any

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error in failing to instruct the jury to disregard Gabrielle’s statement is not
preserved for our review. See Tex. R. App. P. 33.1.

      We review the denial of a motion for mistrial for abuse of discretion.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Hudson v. State, 179
S.W.3d 731, 738 (Tex.App—Houston [14th Dist.] 2005, no pet.). A mistrial is
warranted for improper conduct that is ‘so prejudicial that expenditure of further
time and expense would be wasteful and futile’ and where the prejudice is
incurable.” Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567
(Tex. Crim. App. 1999)). See also Hudson, 179 S.W.3d at 738 (“A mistrial is an
extreme remedy for prejudicial events that occur at trial and should be exceedingly
uncommon.”). As a factor in determining whether the trial court erred in denying a
motion for a mistrial, we also consider whether the prosecutor solicited the
improper testimony. Id. (citing Drake v. State, 123 S.W.3d 596, 604 (Tex.App.—
Houston [14th Dist.] 2003, pet. ref’d)).

      This breach of the motion in limine was by the witness giving an
unresponsive answer to the prosecutor’s question. The record does not reflect
Gabrielle’s single statement that she believed there were other victims prejudiced
appellant. The jury heard evidence that Cindy also made an outcry in 2010 and
was interviewed by Children’s Safe Harbor and found appellant not guilty of
aggravated sexual assault of Gabrielle and a second count of aggravated sexual
assault of Erin. Given the nature of the breach and the fact the evidence was not
solicited by the State, the trial court did not abuse its discretion in denying
appellant’s motion for a mistrial. Ladd, 3 S.W.3d at 567. Appellant’s final issue is
overruled.




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      We reverse and remand only the portion of the judgments imposing
consecutive suspended sentences; in all other respects, we affirm the trial court’s
judgments.


                                      /s/    Sharon McCally
                                             Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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