                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00033-CR



            DONALD COLEMAN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 5th District Court
                 Bowie County, Texas
             Trial Court No. 16F1074-005




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                             MEMORANDUM OPINION
            Donald Coleman was originally indicted by a Bowie County grand jury for one count of

indecency with a child by sexual contact1 in cause number 16F0639-005, alleged to have been

committed on or about June 17, 2016, against Mary Thomas2 (the 2016 Offense).                   On

December 15, 2016, less than a month before cause number 16F0639-005 was scheduled for jury

trial, the grand jury issued a new indictment in cause number 16F1074-005 charging Coleman

again with the 2016 Offense, and charging him with two additional counts of indecency with a

child by sexual contact alleged to have been committed against Thomas on or about June 15, 2014

(the 2014 Offenses). After his motion for continuance and his motion for severance were denied,

a jury trial on all three counts was held on January 10, 2017. The jury found Coleman guilty on

all three counts, and assessed punishments of twenty years’ imprisonment for the 2016 Offense,

and fifteen years’ imprisonment and ten years’ imprisonment for the 2014 Offenses, all of which

the trial court imposed to be served consecutively.

            On appeal, Coleman asserts that the trial court erred (1) in denying his motion for

continuance, and (2) in denying his motion for severance of the 2014 Offenses. Coleman also

asserts that insufficient evidence supports his conviction for the 2016 Offense. Since we find no

abuse of discretion by the trial court and since we find that sufficient evidence supports Coleman’s

conviction, we will affirm the trial court’s judgment.




1
    See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
2
    We refer to the victim and her sister by pseudonyms. See TEX. R. APP. P. 9.10(a)(3).

                                                            2
I.         Procedural Background

           Coleman asserts, and the State does not dispute, that Coleman was originally indicted for

the 2016 Offense in cause number 16F0639-005.3 After the case was set for jury trial to commence

on January 10, 2016, the grand jury re-indicted Coleman for the 2016 Offense and added the 2014

Offenses in a single indictment in cause number 16F1074-005, on December 15, 2016. On

December 19, 2016, Coleman filed a motion for continuance complaining of the addition of the

2014 Offenses and contending that he could not be ready for the January 10 trial setting. Although

he acknowledged that he received discovery on the 2014 Offenses on December 16, Coleman

maintained that the new charges were of a serious and complex nature. He complained that the

State had also informed him of its intent to introduce evidence of sexual assaults committed by

Coleman against Thomas’ sister, alleged to have occurred in 2008 and 2009, which involved

witnesses and reports from both Texarkana and Fort Worth.

           On January 3, 2017, Coleman filed his motion for severance asking the trial court to sever

the trial of the 2014 Offenses. Coleman asserted that he had a right to severance under Section

3.04 of the Texas Penal Code because he would be unfairly prejudiced by the joinder of the 2014

Offenses. See TEX. PENAL CODE ANN. § 3.04(c) (West 2011). He also asserted that the State failed

to give him thirty days’ notice as required under Section 3.02(b) of the Penal Code.4 See TEX.

PENAL CODE ANN. § 3.02(b) (West 2011) (requiring written notice of not less than thirty days




3
    The record in cause number 16F0639-005 was not included in the record on appeal.
4
 On appeal, Coleman does not complain that the offenses were improperly joined or consolidated under Section 3.02
of the Texas Penal Code.
                                                          3
when the State intends to prosecute a single criminal action based on more than one charging

instrument).

       On January 9, the trial court held a hearing on Coleman’s motions. At the hearing,

Coleman informed the trial court that the State had provided him with the records from Child

Protective Services (CPS) regarding the 2016 Offense, the 2014 Offenses, and the 2008–2009

allegations of sexual assault involving Thomas’ sister, on the previous Wednesday. He described

the records as voluminous. He also asserted that there was discovery still outstanding on the 2008–

2009 assault cases that might contain mitigating and exculpatory evidence in those cases. Coleman

argued that he would not be able to effectively cross-examine Thomas’ sister, who was a witness

in this case, without that discovery. Coleman failed to present any argument regarding the means

by which he would be unfairly prejudiced if the 2014 Offenses were not severed. The trial court

denied both motions.

       On January 10, Coleman re-urged his motion for continuance before jury selection began,

arguing that he had not received a CPS report from 2010 that may contain impeachment

information. After the State informed the trial court that CPS would not provide those records

without a subpoena duces tecum, the trial court again denied the motion. The trial court then held

a hearing on the admissibility of evidence of the 2008–2009 sexual assaults in the guilt/innocence

stage. After determining that the State had not given timely notice under Article 38.37 of the Code

of Criminal Procedure, the trial court excluded this evidence from the guilt/innocence stage. See

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 3 (West Supp. 2016).



                                                4
II.    Evidence at Trial

       Thomas, who was fourteen years old at the time of trial, testified that she then lived in

Arlington with her father. In June 2014, she was visiting Texarkana and staying with her

grandmother. Thomas testified that she needed something from her mother’s house and that

Coleman, who was married to her mother, picked her up and took her to her mother’s house. When

they arrived, Thomas went to the bathroom that was connected to her mother’s bedroom. While

she was in the bathroom, Coleman came in the bedroom and locked the bedroom door. When she

came out, he began to chase her, and when he caught her, he pinned her to the bed with his forearm

on her chest. He took her pants off with his other hand, but her underwear remained on her. She

asked him why he was doing this, and he said, “Because I love you.” Coleman then began touching

her vagina with his hand over her clothes and put his hand under her shirt and bra and touched her

breasts. At that point, her grandmother called and told Coleman to bring Thomas home, which he

did. Thomas was twelve years old at the time.

       Thomas testified that she told her father what happened when she returned to Arlington.

Her father called the police in Texarkana, and she gave a statement to them and was interviewed

at the Texarkana Children’s Advocacy Center (CAC).

       In the summer of 2016, Thomas was again visiting family in Texarkana and staying with

her sister and her aunt. One evening in June, her mother asked Thomas and her sister to come to

her house to babysit her younger children. Initially, Thomas was at the house with her sister, her

sister’s boyfriend, and the younger children. When Coleman and her mother returned, her mother

went to her bedroom. Coleman went to the laundry room that was on one side of the kitchen, then

                                                5
walked toward Thomas, who was sitting at the kitchen table wrapped in a comforter and wearing

shorts and a t-shirt. When Coleman got to Thomas, he leaned over, put his hand under the

comforter, grabbed her breasts, and said, “Wait until Monday or Tuesday. I’m going to give you

what you want.” She said that Coleman was in front of her at the time. Thomas testified that the

younger children were in their room and that her sister and her sister’s boyfriend were outside.

       After her sister and her sister’s boyfriend came inside and went to the extra bedroom,

Thomas went to her sister and wrote down what happened. After her sister read it, they told her

mother what Coleman had done. Thomas testified that after her father found out what happened,

he picked her up the next evening and took her to the police to make a report. She stated that she

was also interviewed at the CAC. On cross-examination, Thomas acknowledged that she told the

CAC counselor in 2014 that Coleman had touched her over her clothing in both places. She also

testified that she had a medical examination after the 2014 incident, but not after the one in 2016.

       Thomas’ sister, Adrian, testified that she and Thomas were asked to babysit at their

mother’s house on June 17, 2016. She testified that when Coleman returned to the house, she and

her boyfriend were outside in a truck and Thomas, the younger children, and her mother were in

the house. When she and her boyfriend came inside, Thomas was wrapped in a blanket using her

mother’s laptop computer. After they went to an extra bedroom, Thomas knocked on the door and

said she wanted to tell Adrian something. Thomas wrote down what happened and gave it to

Adrian, who read it. Adrian testified that while Thomas was in the room, Coleman was pacing

around the house. After reading the note, Adrian, her boyfriend, and Thomas went outside to

discuss it. While they were outside, Coleman came out several times, scolding Thomas for having

                                                 6
the blanket outside and for not turning off the computer and scolding all of them for being outside

when it was so late. When they went back inside the house to tell their mother what had happened,

Coleman packed a bag and left. Adrian also testified that she gave a statement to the police, and

she confirmed that she and Thomas had been staying at her aunt’s house.

       The jury also heard the custodial statement that Coleman gave Detective Tabitha Colley of

the Texarkana Police Department. In his statement, Coleman claimed that Thomas had been

staying at the house for two weeks. He said that when he got home, Thomas was using the

computer and the younger children were in the kitchen. Coleman sought to frame the problem that

night as his concern that Adrian and her boyfriend were standing outside of the house at 1:30 in

the morning playing music, and he stated that that was why he had packed a bag and gone to his

sister’s house. He denied touching Thomas’ breasts and claimed that his wife and children were

in the kitchen while he was cooking. He admitted that he would not have been working on Monday

and Tuesday, but claimed that he would not have been at the house.

       Missy Davidson, the program director at the CAC, testified that she conducted a forensic

interview of Thomas on September 5, 2014, and that Thomas was also interviewed at the CAC in

2016. Davidson did not testify regarding the substance of the interviews, but testified that in both

instances, Thomas answered the questions appropriately.

III.   No Abuse of Discretion in Denying the Motion for Continuance

       In his first issue, Coleman contends that the trial court erred in denying his motion for

continuance. We review the trial court’s grant or denial of a motion for continuance using an abuse

of discretion standard. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (citing

                                                 7
Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim. App. 1995)). An abuse of discretion is

shown only where the defendant shows that he was “actually prejudiced by the denial of his

motion.” Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (citing Heiselbetz, 906

S.W.2d at 511).

       Coleman asserts that he was unable to adequately prepare for his defense because the CPS

records from the 2014 Offenses were not produced until shortly before trial and that he had

informed the trial court that he had good reason to believe some other non-produced CPS document

contained either exculpatory or impeachment material. He also complains that the addition of the

2014 Offenses to the indictment did not occur until December 15. He contends that he was not

required to respond to the new indictment until December 26, which left him only the week

between Christmas and New Year’s Day, and the following week, to prepare for trial.

       However, the record shows that in his motion for continuance, Coleman acknowledged that

he had received discovery on the 2014 Offenses on December 16. Although the State may not

have produced the CPS records related to these offenses until the first week of January, Coleman

has not shown that he was prevented from identifying or interviewing witnesses, or from obtaining

the CPS records by subpoena at an earlier time. Further, Coleman’s main complaint before the

trial court was regarding the outstanding discovery related to the extraneous 2008–2009 sexual

assaults involving Adrian. From his argument at trial, it appears that his assertion that he believed

that some other CPS documents may contain exculpatory or impeachment material related to those

extraneous offenses. As it turned out, the trial court excluded any evidence regarding those



                                                 8
extraneous offenses.5 Further, Coleman has not shown that he was prevented from obtaining those

records by subpoena.

           In addition, the new indictment was handed down on December 15, 2016, and Coleman

admits he was served with the indictment on December 16. Article 27.11 of the Texas Code of

Criminal Procedure,6 which gives the defendant ten days to file written pleadings, has been

interpreted as guaranteeing the defendant ten days before he may be put to trial on the new

indictment. See Trevino v. State, 900 S.W.2d 815, 817 (Tex. App.—Corpus Christi 1995, no pet.)

(citing Oliver v. State, 646 S.W.2d 242, 245 (Tex. Crim. App. 1983)). In this case, Coleman had

twenty-four days to prepare for trial after the new indictment, so the requirements of Article 27.11

were satisfied. Further, the Texas Court of Criminal Appeals has held that without a showing of

specific prejudice, no abuse of discretion is shown in the denial of a motion for continuance based

on inadequate time to prepare when counsel was appointed twenty-four days before trial.

Hernandez v. State, 643 S.W.2d 397, 399–400 (Tex. Crim. App. 1982). As in Hernandez,

Coleman has shown no specific prejudice resulting from the trial court’s denial of his motion for

continuance. Consequently, we find that the trial court did not abuse its discretion, and we overrule

Coleman’s first issue.




5
 Coleman points to his trial counsel’s rather brief cross-examination of Thomas regarding the 2014 Offenses as
evidence of trial counsel’s lack of time to properly prepare. However, we note that trial counsel’s cross-examination
regarding the 2016 Offense, for which there is no claim of inadequate preparation time, was at least as brief. That
brief cross-examination could just as easily be explained as being the reasonable trial strategy of Coleman’s trial
counsel. Having successfully excluded any evidence regarding the extraneous sexual assaults against Thomas’ sister
because of the State’s untimely notice under Article 38.37, trial counsel may have limited his cross-examination so
that he did not open the door for the admission of that evidence.
6
    TEX. CODE CRIM. PROC. ANN. art. 27.11 (West 2006).
                                                         9
IV.    No Abuse of Discretion in Denying the Motion for Severance

       In his second issue, Coleman complains that the trial court erred in denying his motion for

severance of the 2014 Offenses. Generally, when two or more offenses are joined or consolidated

for trial, a defendant who timely objects to the joinder has a right to severance. TEX. PENAL CODE

ANN. § 3.04(a) (West 2011); Lane v. State, 174 S.W.3d 376, 380 (Tex. App.—Houston [14th Dist]

2005, pet. ref’d) (citing Salazar v. State, 127 S.W.3d 355, 364 (Tex. App.—Houston [14th Dist.]

2004, pet. ref’d) (citing TEX. PENAL CODE ANN. §§ 3.02, 3.04(a)). However, the right to severance

does not apply to prosecutions for, inter alia, indecency with a child, “unless the court determines

that the defendant or the state would be unfairly prejudiced by a joinder of offenses.” TEX. PENAL

CODE ANN. § 3.04(c) (West 2011); see TEX. PENAL CODE ANN. § 3.03(b)(2)(A) (West Supp. 2016);

Matthews v. State, 152 S.W.3d 723, 730 (Tex. App.—Tyler 2004, no pet.). The defendant bears

the burden of showing the way by which he would be unfairly prejudiced by the joinder of the

cases. Hodge v. State, 500 S.W.3d 612, 621 (Tex. App.—Austin 2016, no pet.); Lane, 174 S.W.3d

at 380. Further, there is no presumption that the joinder of cases involving a child victim is unfairly

prejudicial. Hodge, 500 S.W.3d at 621; Matthews, 152 S.W.3d at 730–31. To show unfair

prejudice, “the defendant must show some type of prejudice beyond that which a defendant would

automatically face in any case in which felony counts are joined.” Casey v. State, 349 S.W.3d

825, 832 (Tex. App.—El Paso 2011, pet. ref’d); Hodge, 500 S.W.3d at 622.

       We review a trial court’s grant or denial of a motion for severance for an abuse of

discretion. Hodge, 500 S.W.3d at 621; Matthews, 152 S.W.3d at 730. We will not interfere with

its ruling as long as it is “within the zone of reasonable disagreement.” Lopez v. State, 86 S.W.3d

                                                  10
228, 230 (Tex. Crim. App. 2002) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on reh’g)).

          At trial, although Coleman asserted in his motion that he would be unfairly prejudiced by

the joinder of the 2014 Offenses, he did not explain to the trial court (either in his motion or at the

hearing on his motion) how he would be prejudiced beyond that which any defendant would be in

a case in which felony counts are joined. On appeal, Coleman complains that the trial court did

not indicate on the record the basis of its determination that the joinder would not be unfairly

prejudicial. However, since Coleman did not make any argument showing how joinder would be

unfairly prejudicial, it was unnecessary for the trial court to express its reason for denial on the

record.

          Coleman also complains on appeal that the joinder subjected him to being convicted for

the 2016 Offense because the jury thought he was a bad man who deserved to be punished for his

misdeeds, or that it inferred his guilt because he committed other crimes. See Llamas v. State, 12

S.W.3d 469, 471–72 (Tex. Crim. App. 2000). However, this argument claims no more than that

he faced the type of prejudice any defendant faces in a case in which felony counts are joined.

Casey, 349 S.W.3d at 832. Since Coleman did not show that he would be unfairly prejudiced by

the joinder of the offenses, we find that the trial court did not abuse its discretion in denying his

motion for severance. See id.; Lane, 174 S.W.3d at 380. We overrule Coleman’s second issue.

V.        Sufficient Evidence Supports Coleman’s Conviction for the 2016 Offense

          In his third issue, Coleman contends that there is legally insufficient evidence to support

his conviction of the 2016 Offense. In evaluating legal sufficiency, we review all the evidence in

                                                  11
the light most favorable to the trial court’s judgment to determine whether any rational jury could

have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d).

Our rigorous review of legal sufficiency focuses on the quality of the evidence presented. Brooks,

323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction

of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

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

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443

U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       In drawing reasonable inferences, the jury “may use common sense and apply common

knowledge, observation, and experience gained in the ordinary affairs of life.” Duren v. State, 87

S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck) (citing Manrique v. State, 994 S.W.2d

640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)).

       Further, the jury is the sole judge of the credibility of the witnesses and the weight to be

given their testimony and may “believe all of a witnesses’ testimony, portions of it, or none of it.”

Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give “almost complete deference

to a jury’s decision when that decision is based upon an evaluation of credibility.” Lancon v. State,

253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

       In our review, we consider “events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

                                                 12
design to do the prohibited act.” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d

107, 111 (Tex. Crim. App. 1985)).         It is not required that each fact “point directly and

independently to the guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id. Circumstantial evidence and direct

evidence are equally probative in establishing the guilt of a defendant, and guilt can be established

by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015);

Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).

       Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id. In this case, to obtain a conviction for indecency with a child by sexual

contact, the State was required to show beyond a reasonable doubt that on or about June 17, 2016,

Coleman, (1) with intent to arouse or gratify his sexual desire, (2) intentionally or knowingly

(3) touched Thomas’ breast (4) while Thomas was younger than seventeen years of age. TEX.

PENAL CODE ANN. § 21.11(a)(1). In the context of indecency with a child, the touching of the

breast includes touching through clothing. See TEX. PENAL CODE ANN. § 21.11(c)(1) (West 2011).

       Coleman only challenges the sufficiency of the evidence showing he touched Thomas’

breast. He argues that it would have been physically impossible for Thomas to be sitting in front

of a computer at the kitchen table and for him to also be standing in front of her, reach through the

                                                 13
comforter, and touch her breast. Although this may be a possible inconsistency in Thomas’

testimony, a rational jury could resolve any inconsistency and reasonably find that Coleman

reached under the comforter and touched Thomas’ breast. Thomas testified that she was sitting at

the kitchen table when Coleman came over to her, leaned over, put his hand under the comforter,

and touched her breasts. When asked whether Coleman was in front of her or behind her when he

did this, she replied, “In front of me.” That answer does not necessarily mean that Coleman was

standing directly in front of her. Rather, a rational jury could reasonably infer, considering the

totality of Thomas’ testimony, that Coleman was standing to the side and somewhat in front of

Coleman and that when he leaned over to put his hand under the comforter, the upper part of his

body was in front of Thomas. Further, since Thomas did not state whether Coleman reached under

her t-shirt, the jury could reasonably infer that he (at the least) touched her breast through her

t-shirt. A conviction under Chapter 21 of the Penal Code, including indecency with a child, may

be supported by the uncorroborated testimony of a child victim. See TEX. CODE CRIM. PROC. ANN.

art. 38.07(a), (b)(1) (West Supp. 2016); State v. Dudley, 223 S.W.3d 717, 726 (Tex. App.—Tyler

2007, no pet.); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d). We

find that there is sufficient evidence to support Coleman’s conviction for the 2016 Offense, 7 and

we overrule his third point of error.




7
 Although not challenged, we note that Thomas’ testimony would also support the jury’s findings regarding the other
elements of the offense.
                                                        14
      For the reasons stated, we affirm the judgment of the trial court.




                                            Bailey C. Moseley
                                            Justice

Date Submitted:      October 30, 2017
Date Decided:        November 2, 2017

Do Not Publish




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