Eric Laval Thompson v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00454-CR
ERIC LAVAL THOMPSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 264th District Court
Bell County, Texas
Trial Court No. 68897, Honorable Martha J. Trudo, Presiding
September 19, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
A jury convicted appellant Eric Laval Thompson of criminal solicitation of a minor,
R.S., and assessed punishment at thirty years in prison.1 Through two issues appellant
asserts the corroborating evidence, required by statute, was insufficient. We will
overrule appellant’s issues and affirm the judgment of the trial court.
1
See TEX. PENAL CODE ANN. § 15.031 (West Supp. 2014). The punishment was
enhanced to habitual offender status by proof of three prior convictions. TEX. PENAL
CODE ANN. § 12.42(d) (West Supp. 2014).
Background
Viewed in the light most favorable to the verdict, the evidence at trial shows the
following. R.S. and her sister S.S., both age thirteen at the time, were staying overnight
with their aunt F.O. Also present were F.O.’s two children, a female age thirteen and a
male age three.
During the night, F.O. returned home with appellant, her boyfriend. F.O.
promptly went to bed because she had to work the next morning. Appellant remained in
the living room where S.S. and her female cousin lay on a “pull-out” couch. R.S. also
was present.
Appellant spoke with R.S. Among other things, he asked if she had seen a
particular pornographic video. When R.S. responded that she had not, he began
describing the content. They talked of possibly watching a movie and appellant offered
R.S. five dollars to “rub his shoulders.” She obliged.
After a few minutes, appellant began inappropriately touching R.S. She asked
him to stop. He then walked toward an unoccupied bedroom and asked R.S. if she
wanted to earn $50. When she asked what was required he responded “just come in
the room.” R.S. understood appellant wanted to have sexual intercourse with her. She
refused and appellant returned to the couch beside R.S. He placed her hand on his
penis and began rubbing. He also rubbed her breast. When he asked if she wanted
him to stop, she responded affirmatively.
2
Appellant then left for F.O.’s bedroom. R.S. lay crying on the couch beside S.S.
The following morning R.S. told S.S. of the events. S.S. telephoned the police and an
investigation followed, leading to appellant’s arrest.
A sexual assault nurse examiner testified to her examination of R.S. The history
R.S. gave the nurse substantially paralleled her in-court testimony. The nurse
discovered a one-centimeter laceration on R.S.’s sexual organ, which she said was
consistent with the history R.S. provided. On cross-examination, she also agreed there
were lawful explanations for the type of laceration R.S. presented. No evidence of any
of the other identified explanations was adduced.
S.S. testified that she was sleeping on the pull-out couch but overheard a
conversation between a man and R.S.2 She heard the man ask R.S., “Do you want to
make $50 and she said, ‘What do I have to do?’ He said, ‘Well, lay on your back.’ She
said, ‘Why?’ He said, ‘Just lay on your back.’” S.S. continued, “He asked her to come
into the room. She said no repeatedly.” According to S.S., R.S. told the man she was
thirteen but soon to be fourteen. After the man “went somewhere” R.S. lay on the
couch crying. The following morning R.S. told S.S. “what happened” and S.S. called the
police.
After his arrest, appellant telephoned his mother from jail. The call was recorded
and the recording was played for the jury. During the conversation, appellant stated, “I
did offer the girl some money to f- - - . . . . I can admit to that, I offered the girl some
money.”
2
S.S. did not explicitly identify appellant as the man she heard talking with R.S.,
but it is undisputed appellant was the only adult male present.
3
Appellant chose to testify at the guilt/innocence phase of trial. His testimony was
rambling and at times difficult to follow. He did not deny, however, the offer of sex for
money recounted in his jail telephone call with his mother.
Appellant was sentenced according to the jury’s verdict and this appeal followed.
Analysis
Through two issues which we, like the parties, discuss jointly, appellant argues
the evidence of the solicitation and of his intent that R.S. act on the solicitation was
insufficiently corroborated.
The indictment specifically alleged appellant:
did then and there with the intent that Indency (sic) with a Child by contact
be committed, request, command and attempt to induce [R.S.] an
individual younger than 17 years of age to engage in specific conduct, to
wit: to allow the [appellant] to touch her female sexual organ that under
the circumstances surrounding the conduct of the [appellant] would have
constituted Indecency with a Child.
In relevant part, Penal Code section 15.031 provides that a person commits the offense
of solicitation of a minor:
[i]f, with intent that an offense under [Penal Code § 21.11(a)(1) (indecency
with a child)] be committed, the person by any means requests,
commands, or attempts to induce a minor or another whom the person
believes to be a minor to engage in specific conduct that, under the
circumstances surrounding the actor’s conduct as the actor believes them
to be, would constitute an offense under [§ 21.11(a)(1)] or would make the
minor or other believed by the person to be a party to the commission of
the offense under [§ 21.11(a)(1)].
TEX. PENAL CODE ANN. § 15.031(b) (West Supp. 2014). Under this section, a “minor”
means an individual younger than 17 years of age. Id. at 15.031(f).
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Penal Code section 21.11 provides, in pertinent part, that a person commits the
offense of indecency with a child “if, with a child younger than 17 years and not the
person’s spouse, . . . the person: (1) engages in sexual contact with the child . . . .” TEX.
PENAL CODE ANN. § 21.11(a)(1) (West 2011). ‘“[S]exual contact’ means the following
acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1)
any touching by a person, including touching through clothing, . . . [of] any part of the
genitals of a child . . . .” Id. at § 21.11(c)(1).
A person may not be convicted [of solicitation of a minor] on the
uncorroborated testimony of the minor allegedly solicited unless the
solicitation is made under circumstances strongly corroborative of both the
solicitation itself and the actor’s intent that the minor act on the solicitation.
TEX. PENAL CODE ANN. § 15.031(c) (West Supp. 2014). The required
corroboration is like that of the accomplice-witness statute, Code of Criminal Procedure
article 38.14. Lankford v. State, 255 S.W.3d 275, 277 (Tex. App.—Waco 2008, pet.
refused) (comparing § 15.031(c) with art. 38.14, and citing Richardson v. State, 700
S.W.2d 591, 594 (Tex. Crim. App. 1985)). And, to evaluate the sufficiency of the
corroborating evidence, we apply the same standard used in accomplice-witness cases.
Richardson, 700 S.W.2d at 594 (citing Adams v. State, 685 S.W.2d 661 (Tex. Crim.
App. 1985)). Applying that standard, we “eliminate the accomplice testimony from
consideration and then examine the remaining portions of the record to see if there is
any evidence that tends to connect the accused with the commission of the crime.”
Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).
A challenge to the sufficiency of corroborating evidence is not the same as a
challenge to the sufficiency of the evidence to support the verdict as a whole. Cathey v.
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State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999) (accomplice-witness rule is
legislatively-created sufficiency review and not derived from federal or state
constitutional principles defining sufficiency of evidence standards). The corroborating
evidence need not directly connect the defendant to the crime or be sufficient by itself to
establish guilt. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Vasquez v. State,
67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Rather, evidence offered in corroboration
need only tend to connect the defendant to the offense. Smith v. State, 211 S.W.3d
476, 478 (Tex. App.—Amarillo 2006, no pet.). The phrase “tends to connect” has the
ordinary dictionary definition, “to serve, contribute or conduce in some degree or
way . . . to have a more or less direct bearing or effect.” Holladay v. State, 709 S.W.2d
194, 198 (Tex. Crim. App. 1986) (quoting Boone v. State, 90 Tex. Crim. 374, 235 S.W.
580, 584 (1921)). Although the mere presence of an accused in the company of the
accomplice before, during, and after the commission of the offense, standing alone, is
insufficient to corroborate accomplice testimony, evidence of such presence, along with
proof of other suspicious circumstances, may tend to connect the accused to the
offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). We review the
corroborating evidence in the light most favorable to the verdict. Smith, 211 S.W.3d at
478. The tends-to-connect standard does not present a high threshold. Cantelon v.
State, 85 S.W.3d 457, 460-61 (Tex. App.—Austin 2002, no pet.).
We find evidence corroborating R.S.’s testimony in the nurse examiner’s
testimony, S.S.’s testimony, appellant’s recorded telephone conversation with his
mother, and in appellant’s trial testimony. During his testimony, appellant denied
6
mentioning anything to R.S. about sexual intercourse but then added, concerning the
recorded conversation with his mother:
When I spoke to my mom about this situation I told my mom I was
intending to give her $50—that I was going to give her $50 to f[- - -]. Yes,
I did say that. And I meant that. I am so sorry. I shouldn’t have even said
that to that girl.[3] But for me to know that this girl was and then when the
detective told me she was a lot younger than that, I mean, it’s—it’s
entrapment.
Later appellant testified he “was lead to believe the girl was 17 years old.” His cross-
examination ended with the following colloquy:
Q [R.S.] said you offered her $50.
A [R.S.] said that just a second ago. Yes, she did, I heard her say that.
Q And you told your mom that’s what you did?
A I told my mom that I was going to give a girl $50 to f[- - -], yes, I did tell my
mom that. I did. I did. I promise you did I did (sic).
Appellant’s contention may be that he told his mother he intended to ask R.S. to
have sex with him for $50, but he never uttered the intention to R.S. Thus he could not
have requested, commanded, or attempted to induce R.S. However, in separate
conversations shortly after their encounter, R.S. and appellant both said he offered her
$50 for sex. He told his mother as much, while R.S. told the nurse examiner. S.S. also
testified she heard a man ask R.S. if she wanted to make $50 by lying on her back.
S.S. also testified he asked R.S. to “come into the room.”
The jury was not required to accept appellant’s initial denial that he solicited
sexual contact from R.S. In its role as judge of the credibility of the witnesses and the
3
During his lengthy testimony, appellant referred to R.S. as “that girl,” “the girl,”
or “this girl.”
7
weight given their testimony, the jury was free to accept or reject all or any portion of a
witness’s testimony. Gutierrez v. State, No. 04-12-00349-CR, 2013 Tex. App. Lexis
5329, at *16 (Tex. App.—San Antonio May 1, 2013, no pet.) (mem. op., not designated
for publication).
Based on the testimony of appellant, S.S., the nurse examiner, and the recorded
conversation, we find the evidence tending to connect appellant with criminal solicitation
of R.S., a minor, was sufficient. Appellant’s first and second issues are overruled.
Conclusion
The judgment of the trial court is affirmed.
James T. Campbell
Justice
Do not publish.
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