Ronnie James Monroe v. State ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00118-CR
___________________________
RONNIE JAMES MONROE, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1491623R
Before Sudderth, C.J.; Meier and Kerr, JJ.
Opinion by Justice Meier
MEMORANDUM OPINION1
I. INTRODUCTION
This is an indecency-with-a-child-by-contact case wherein appellant Ronnie
James Monroe appeals his conviction and life sentence. In three issues, Monroe
argues that the evidence is insufficient to demonstrate a culpable mental state, that
some of the court costs imposed in the trial court’s judgment should be deleted or
reduced, and that the trial court’s judgment incorrectly reflects that the jury found the
State’s repeat-offender notice to be true. Because we conclude that sufficient
evidence exists that Monroe intended to commit the offense, that Monroe is not
entitled to a reduction in court costs, and that it was error for the trial court to enter a
finding of true to the repeat-offender notice,2 we will modify the trial court’s
judgment to remove the repeat-offender finding and will affirm the trial court’s
judgment as modified.
See Tex. R. App. P. 47.4.
1
2
The jury found the State’s sex-offender notice to be true, enhancing the
punishment range for the offense from a maximum of twenty years to a mandatory
life sentence. See Tex. Penal Code. Ann. § 12.42(c)(2)(B) (West Supp. 2017).
Therefore, it was proper for the jury to assess a life sentence regardless of the repeat-
offender finding and our modification of the judgment does not impact Monroe’s
sentence.
2
II. BACKGROUND
At trial, Mother3 testified that she began dating Monroe right before Christmas
2013. She met him on a social website, and he moved in with her and her two
children sometime around June 2014. Mother averred that on June 11, 2016, she,
Monroe, Girl, and Boy attended a family reunion at a nearby lake. Girl was six years
old at the time.
According to Mother, the group left the reunion just after dark and stopped at
a local gas station so that she and Girl could use the restroom and Monroe could fill
the vehicle with gas. Mother said that after she used the toilet, Girl then attempted to
do the same. By Mother’s account, as Girl was pulling down her pants, Mother
glanced toward Girl and Girl “tried to cover . . . up real fast to hide.” Mother said
that she asked Girl, “What’s going on?” Mother stated that she then inspected Girl’s
underwear, discovered what she believed to be blood, and questioned Girl further, to
which Girl responded, “Sometimes when you’re not home [Monroe] touches me.” In
response, Mother and Girl went to the car while Monroe finished filling up the
vehicle. Mother then drove the group away from the gas station. Mother said that
she first attempted to contact her brothers so that one of them would “beat” Monroe.
To protect the child complainant’s anonymity, we refer to children and family
3
members by aliases. Tex. R. App. P. 9.8(b) & cmt., 9.10(a)(3); McClendon v. State, 643
S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3
She was also driving erratically. Because of her erratic driving, Mother said that
Monroe began to question her about why she was upset.
Mother said that eventually she declared to Monroe, “Well, you[’ve] been
touching my baby.” Mother said that Monroe said, “No, I haven’t,” to which Girl
said, “Yes, you have.” Because she was unable to contact either of her brothers,
Mother said that she then called 911. After speaking with the 911 dispatcher, Mother
drove the car to a nearby 7-Eleven in order to meet up with police officers. Mother
said that after meeting with the officers, she drove Girl to the Alliance for Children
center. After someone from the center interviewed Girl, Mother then took Girl to
Cook Children’s Hospital for an examination. As Mother testified, the State
introduced three pictures—one of Girl, one of Boy, and one of them both together.
According to Mother, these pictures would have been viewable to Monroe from the
social website when Mother met him. The State also introduced, and the trial court
admitted, pictures of Girl’s underwear, showing the apparent bloodstain that initially
alarmed Mother. And the State also introduced, and the trial court admitted, the
underwear.
Detective Brent Kessler of the Fort Worth Police Department testified that
after officers went to the 7-Eleven, one of the officers told Kessler that Monroe
wanted to talk to the police. Kessler averred that he instructed officers to take
Monroe to the Alliance for Children center for an interview. According to Kessler, in
4
the interview, Monroe stated that he had been “rubbing” on Girl’s vaginal area but
not under her clothes. Monroe also told Kessler that this conduct had begun two
days prior to Girl’s outcry and had lasted for five seconds, but he said that he stopped
because his conscience got to him.
The State introduced recorded portions of Kessler’s interview with Monroe.
During the interview, Monroe admitted that he had been molested as a child. He
further admitted that he has “urges” to touch children, that he sometimes feels that he
needs help to control these urges, and that these urges were a part of the reason he
drinks excessive amounts of alcohol. When Kessler asked whether Monroe had been
molesting Girl, Monroe said, “I probably feel that I have been doing it,” “but I don’t
know.” When Kessler told Monroe that the evidence already showed that something
had happened between him and Girl, Monroe responded, “I just want to get
somewhere that I can get help.” When Kessler asked what “urges” he was fighting,
Monroe said that he would not sexually assault a child but that he might have been
“fondling them or stuff like that.” Although never expressing exactly what took place
between him and Girl, Monroe stated that what had transpired had “just recently
started happening” and that something had “clicked in [his] mind” recently. He also
attributed what had transpired as being due to a lot of stress, his heavy drinking, and
his having a tumor in his head. He then admitted that he had been ”rubbing” on Girl
“but not under her clothes.” He also said that his interaction with Girl was his “first
5
one” and that he had not acted on his urges with any other children. He also said that
“it just started like two days ago.” When Kessler asked if he had used anything other
than his fingers, Monroe said “no.” He then described what happened as having only
lasted five seconds. Monroe says that what made him stop was his conscience.
When Kessler asked whether all he had done was rubbed Girl’s vagina, Monroe said
“yeah.” Monroe also declared, “I know that I’m going to jail.”
Girl testified that Monroe had touched her in her “middle part” with his finger
more than five times but that she did not know exactly how many times. Girl also
averred that the touching occurred under her clothes and that the touching was inside
her private area. On cross-examination, Girl averred that when Mother had inspected
her underwear, Mother had said that there was blood on them, but Girl said that she
did not see it herself.
Charity Garcia, a child forensic interviewer for Alliance for Children, testified
that she interviewed Girl. Garcia said that Girl was initially reluctant to discuss the
abuse and that Girl even initially denied anything had occurred. Garcia referred to
Girl’s disclosure as an “accidental disclosure” because Mother had discovered it by
accident. But Garcia said that Girl did eventually disclose that Monroe had put his
finger under her pants and underwear and had “put his finger in her pee pee.” By
Garcia’s account, Girl said that he had done this to her in her bedroom and also in the
living room. A copy of Garcia’s interview was published for the jury. In the
6
interview, Girl said that Monroe had lived with the family for more than two months,
that Monroe began touching her when Mother first met him, and that it continued
through that day.
Christi Thornhill, a nurse practitioner for Cook Children’s Medical Center,
testified that she examined Girl in the early hours of June 12, 2016. Thornhill said
that Girl told her that Monroe had touched her “private parts” with his finger inside
her underwear, that he had done so “[t]oday,” that he “did it all the time[],” that he
did it “sometimes when [Mother] was asleep or when she was gone,” and that “[i]t
hurt” when he would do so. Thornhill averred that Girl specifically described that
Monroe had penetrated Girl’s labia with his finger.
A jury found Monroe guilty of indecency with a child. The parties then
presented evidence at the punishment phase of trial. Having found the State’s sex-
offender notice allegation to be true, the jury assessed punishment at life
imprisonment. The trial court rendered judgment accordingly, and this appeal
followed.
III. DISCUSSION
A. Sufficiency of the Evidence to Show Intent
In his first issue, Monroe argues that the evidence is insufficient to show that
he intended to arouse or gratify the sexual desire of any person and that thus his
conviction should be reversed. We disagree.
7
1. Standard of Review
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); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). 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; Jenkins, 493 S.W.3d
at 599.
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); Blea v. State, 483 S.W.3d 29, 33
(Tex. Crim. App. 2016). 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. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the light
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.),
cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder resolved any
8
conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448–
49; see Blea, 483 S.W.3d at 33.
To determine whether the State has met its burden under Jackson to prove a
defendant’s guilt beyond a reasonable doubt, we compare the elements of the crime,
as defined by the hypothetically correct jury charge, to the evidence adduced at trial.
See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App.
2012) (“The essential elements of the crime are determined by state law.”). Such a
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 restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was
tried. Jenkins, 493 S.W.3d at 599. The law as authorized by the indictment means the
statutory elements of the charged offense as modified by the factual details and legal
theories contained in the charging instrument. See id.; see also Rabb v. State, 434 S.W.3d
613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific element of a penal
offense that has statutory alternatives for that element, the sufficiency of the evidence
will be measured by the element that was actually pleaded, and not any alternative
statutory elements.”).
The standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins,
493 S.W.3d at 599.
9
2. Elements of the Offense
A person commits the offense of indecency with a child by contact if, with a
child younger than seventeen years, the person engages in sexual contact with the
child. Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2011). “[S]exual contact”
means the following acts if committed with the intent to arouse or gratify the sexual
desire of any person: any touching by a person, including touching through clothing,
of the anus, breast, or any part of the genitals of a child. Id. § 21.11(c)(1). A person
acts intentionally with respect to the nature of the conduct or a result of the conduct
when it is the person’s conscious objective or desire to engage in the conduct or cause
the result. Id. § 6.03(a) (West 2011). In the context of indecency with a child, the
factfinder can infer the requisite intent to arouse or gratify the sexual desire from
conduct, remarks, or all the surrounding circumstances. See McKenzie v. State, 617
S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). The intent to arouse or gratify
may be inferred from conduct alone. Id. No oral expression of intent or visible
evidence of sexual arousal is necessary. Gregory v. State, 56 S.W.3d 164, 171 (Tex.
App.—Houston [14th Dist.] 2001, pet. dism’d), cert. denied, 538 U.S. 978 (2003).
3. Evidence of Monroe’s Intent
Viewing the evidence in a light most favorable to the jury’s verdict, the
evidence supports that Monroe had a conscious objective or desire to engage in the
conduct of touching Girl’s genitals with his finger. Indeed, Girl told the forensic
10
interviewer that Monroe would touch her “sometimes when [Mother] was asleep or
when she was gone.” See Gomez v. State, No. 13-08-00157-CR, 2009 WL 2914262, at
*6 (Tex. App.—Corpus Christi Aug. 31, 2009, no pet.) (mem. op., not designated for
publication) (reasoning that appellant’s acts of calling victim to his room when her
cousins were asleep and touching her vagina are factors allowing a jury to infer intent
to arouse). Moreover, Monroe initially denied touching Girl to Mother and to
Kessler, from which the jury could have inferred a consciousness of guilt. See
Anderson v. State, No. 05-09-00737-CR, 2011 WL 989052, at *4 (Tex. App.—Dallas
Mar. 22, 2011, no pet.) (mem. op., not designated for publication) (“[T]he jury was
permitted to take appellant’s initial denial of involvement [in the crime] as proof of
consciousness of guilt.”) (citing Bowden v. State, 166 S.W.3d 466, 476 (Tex. App.—Fort
Worth 2005, pet. ref’d)). The jury could have also inferred a consciousness of guilt
from Monroe’s statements that he continually fought “urges” of molesting children.
See Barcenes v. State, 940 S.W.2d 739, 744–45 (Tex. App.—San Antonio 1997, pet.
ref’d) (reasoning that post-incident statements by accused can indicate a
consciousness of guilt). Furthermore, Monroe’s statement to Kessler that he stopped
the conduct because of his conscience also indicates a consciousness of guilt. And
Monroe admitted to purposely rubbing Girl’s vagina over her clothes, a statement
made amid numerous statements by Monroe that he fought urges to molest children
and that he believed he needed help. A reasonable factfinder could have inferred that
11
Monroe’s remarks, conduct, and the surrounding circumstances of him having
touched Girl’s genitals was done with the intent to arouse or gratify himself. See
McKenzie, 617 S.W.2d at 216. We overrule Monroe’s first issue.
B. The Complained-of Court Costs
In his second issue, Monroe argues that certain costs enumerated in the bill of
costs should be deleted or reduced from the trial court’s judgment. Specifically,
Monroe argues that the criminal records costs ($22.50) and the child abuse prevention
costs ($100) should both be deleted from the trial court’s judgment; he also argues
that the DNA testing costs ($250) and the consolidated felony court costs ($133)
should be reduced.4 We disagree.
1. Criminal Records Costs
Monroe first challenges the trial court’s assessing a statutory $22.50 criminal
records fee as a court cost, contending that the fee is facially unconstitutional. See
Tex. Code Crim. Proc. Ann. art. 102.005(f)(1) (West 2018). The burden rests upon
the individual who challenges a statute to establish its unconstitutionality, and we
make every reasonable presumption in favor of the statute’s constitutionality, unless
4
Monroe does not articulate whether he is making a facial or as-applied
challenge to these costs. But because Monroe only cites to Salinas and because the
term “as applied” appears nowhere in his briefing, we will address his complaint as a
facial challenge to the constitutionality of the statutes imposing these costs.
12
the contrary is clearly shown. Peraza v. State, 467 S.W.3d 508, 514–15 (Tex. Crim.
App. 2015), cert. denied, 136 S. Ct. 1188 (2016).
A facial constitutional challenge attacks the statute itself as opposed to a
particular application of the statute. Id. at 515. To prevail in a facial challenge, a
defendant must establish that no set of circumstances exists under which the statute
would be constitutional. Id.
Statutes assessing court costs must provide that the costs be allocated for
legitimate criminal justice purposes lest they violate the separation-of-powers clause
by functioning as a tax. Id. Thus, to successfully mount a facial challenge to a
statutory court fee, an individual must show that the statute actually authorizes or
prohibits conduct in violation of the Constitution. Id.
Here, Monroe argues that these costs are unconstitutional because the fee may
be spent on “records management and preservation, including automation, in various
county offices.” And then, without citing any authority, giving any explanation for, or
analyzing why, Monroe makes the conclusory statement that “[t]hus, [this court cost]
is not for a legitimate criminal justice purpose.” But Monroe does not even attempt
to establish that no set of circumstances exists under which the statute would be
constitutional. Furthermore, the Peraza court held that absent an as-applied challenge,
when analyzing statutes imposing fees, courts should consider only those purposes
actually contemplated by the statute. See Peraza, 467 S.W.3d at 514–15. Thus, a
13
challenge cannot demonstrate the statute is facially unconstitutional based on how the
revenues might be spent in practice, which is at best what Monroe is arguing. See id.
Following Peraza, we hold that Monroe has failed to establish that the fee imposed by
article 102.005(f)(1) is a facially unconstitutional tax. We overrule this portion of
Monroe’s second issue.
2. Child-Abuse-Prevention Costs
Monroe next challenges the trial court’s assessing a statutory $100 child-abuse-
prevention fee as a court cost, contending that the fee is facially unconstitutional. See
Tex. Code Crim. Proc. Ann. art. 102.0186 (West 2018). Much like his previous
argument, Monroe makes the conclusory claim that this fee is not related to a
legitimate criminal purpose. But this court has held multiple times that article
102.0186 is facially constitutional. Horton v. State, 530 S.W.3d 717, 725 (Tex. App.—
Fort Worth 2017, pet ref’d); Ingram v. State, 503 S.W.3d 745, 749 (Tex. App.—Fort
Worth 2016, pet. ref’d). We hold, as we have consistently held before, that article
102.0186 is facially constitutional. We overrule this portion of Monroe’s second issue.
3. DNA Testing Costs
Monroe next challenges the trial court’s assessing a statutory $250 DNA testing
fee as a court cost, contending that the fee is facially unconstitutional. See Tex. Code
Crim. Proc. Ann. art. 102.020(a)(1), (h) (West 2018). But the Texas Court of Criminal
Appeals has already held that the entirety of the DNA testing fee is “expended for
14
legitimate criminal justice purposes” via interconnected statutory provisions. Peraza,
467 S.W.3d at 519–20. Monroe cites no authority to the contrary, and we decline his
invitation to rule contrary to the court of criminal appeals. We overrule this portion
of Monroe’s second issue.
4. The Consolidated Court Costs
Finally, Monroe challenges the trial court’s assessing a statutory $133 court
costs fee and again contends that the fee is facially unconstitutional. See Tex. Loc.
Gov’t Code Ann. § 133.102(a)(1) (West Supp. 2017). We agree, but we are bound by
precedent to leave these costs intact.
In Salinas v. State, 523 S.W.3d 103, 108–09, 110–11 (Tex. Crim. App. 2017), the
court of criminal appeals partially upheld the same argument Monroe now advances.
In Salinas, the court declared section 133.102 facially unconstitutional in violation of
the separation of powers clause of the Texas constitution to the extent it allocates
funds from the consolidated fees to the “comprehensive rehabilitation” account and
the “abused children’s counseling” account because these subsections do not serve a
“legitimate criminal justice purpose.” Id. (invalidating portions Tex. Loc. Gov’t Code
Ann. § 133.102). We therefore sustain Monroe’s point to the extent that he complains
of the allocation of funds under this subsection.5 But we do not agree that Monroe is
5
Effective June 15, 2017, two months after Monroe’s conviction, the legislature
amended section 133.102(e) to remove the two accounts deemed unconstitutional
from the statute, but the consolidated court cost fee remains at $133. See Act of May
15
entitled to the relief he seeks. In Salinas, the court of criminal appeals held against
retroactive application of its holding and emphasized that only those cases pending in
its court as of the date of the opinion were appropriate for relief. Salinas, 523 S.W.3d
at 112–13. Otherwise, the Salinas holding applies prospectively to “trials that end
after the date the mandate in the present case issues.” Id. at 113.
Here, Monroe was convicted on April 7, 2017. He did not have a petition for
discretionary review raising this issue pending in the court of criminal appeals at the
time the Salinas opinion issued. See Salinas, 523 S.W.3d at 103 (handed down March 8,
2017). Mandate in Salinas issued on June 30, 2017. Hurtado v. State, No. 02-16-00436-
CR, 2017 WL 3188434, at *1 (Tex. App.—Fort Worth July 27, 2017, no pet.) (mem.
op., not designated for publication) (observing Salinas mandate). As such, the Salinas
holding does not apply to Monroe’s case. We overrule this portion of Monroe’s
second issue.
C. Repeat-Offender Notice
In his third issue, Monroe argues that the trial court’s judgment incorrectly
reflects that the jury found the repeat-offender notice to be true. The State concedes
this point. And our review of the record indicates that the jury did not make such a
finding and that it was therefore error by the trial court to enter it in its judgment.
18, 2017, 85th Leg. R.S., ch. 966, 2017 Tex. Sess. Law. Serv. 3917, 3917–18 (West)
(codified at Tex. Loc. Gov’t. Code § 133.102(a), (e)).
16
Thus, we sustain Monroe’s third issue and modify the trial court’s judgment to reflect
that the jury found the repeat-offender notice to be not true.
IV. CONCLUSION
Having overruled Monroe’s first issue, having overruled the dispositive
portions of his second issue, and having sustained his third issue, we modify the trial
court’s judgment to reflect that the jury found the repeat-offender notice to be not
true and affirm the remainder of the trial court’s judgment.
/s/ Bill Meier
Bill Meier
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 13, 2018
17