holding victim’s testimony of penetration by appellant, standing alone, was sufficient to support conviction
How later courts described this case
- holding victim’s testimony of penetration by appellant, standing alone, was sufficient to support conviction
Written by the judges who cited it.
The opinion
Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00147-CR
———————————
SANKET SHUKLA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1457192
MEMORANDUM OPINION
Appellant, Sanket Shukla, was found guilty by a jury of the offense of
aggravated sexual assault of a child.1 The jury assessed his punishment at 59 years
1
See TEX. PENAL CODE § 22.021(a)(1)(B)(iii), (a)(2)(B).
in prison. In three issues, Appellant contends that (1) the evidence was not sufficient
to support the judgment of conviction, (2) the trial court abused its discretion when
it denied his motion to suppress his statement, and (3) the trial court abused its
discretion in admitting evidence of an extraneous offense.
We affirm.
Background
On February 5, 2015, eight-year-old “Ivey” 2 came home after school to her
family’s apartment to find no one there. Normally, one of her parents would be at
home, but that day Ivey’s mother had to work late, and her father needed to pick up
Ivey’s little brother from daycare. Ivey’s parents had told her to stay in the
apartment, but she decided to go outside and ride her bike with a friend.
When Ivey was putting her bike away, a man, later identified as Appellant,
approached Ivey in his car. Appellant asked Ivey why she was outside. Ivey
recognized Appellant as another tenant who lived in the same hallway as her family.
Ivey had met Appellant one other time when he had introduced himself to her when
she was throwing away the trash.
Appellant asked Ivey if she wanted to call her parents, and she said that she
did. Ivey used Appellant’s cell phone to call her father, but he did not answer. Even
2
Ivey is a pseudonym.
2
though Ivey knew that her mother was not allowed to talk on the phone while she
was at work, Ivey also called her mother.
Nearby, a group of people were engaged in an altercation, yelling and
screaming at one another. Appellant told Ivey, “It’s not good for people to fight.”
Appellant took Ivey to the apartment complex’s leasing office. Appellant asked B.
Silberg, an administrative assistant at the apartment complex, to call the police
because people were fighting. Silberg told Appellant to call the police, and he did.
Appellant then told Silberg that he was taking Ivey to her father. Silberg saw
Appellant take Ivey into the building where Appellant and Ivey’s family lived.
Silberg thought Appellant was holding Ivey’s hand.
Appellant did not take Ivey to her apartment. Instead, Appellant took Ivey to
his apartment. Once inside, Appellant locked the front door with a key. Appellant
then told Ivey to sit on his bed. He asked her if she wanted to take a shower, and she
said no. Appellant took off Ivey’s shoes and began massaging her legs. Appellant
told Ivey to get up, and he pulled the covers back on the bed. He told her to lie down,
and he pulled the covers over her.
Ivey was wearing her school clothes: a skirt and a top. Appellant took off
Ivey’s underwear but left on her other clothing. Appellant took off his pants and his
shirt but left on his underwear, which were boxer shorts. Appellant pulled the covers
off Ivey and laid on top of her. Ivey later testified that Appellant “put[] his private
3
part into mine on the outside.” Ivey clarified during her testimony that by
Appellant’s “private part” she meant his penis and by her “private part” she meant
her vagina. She said that she knew it was Appellant’s private part that was touching
her private part because she could see both his hands next to the sides of her head.
When asked whether Appellant’s private part was only on the outside of her private
part or was it also inside her private part, Ivey testified, “It was both. How I knew is
because I [could] feel it inside and then I feel it out.” Ivey also said it hurt her.
Ivey testified that Appellant laid on top of her for about 10 seconds. He then
got off and asked her to sit on his lap. She said that her underwear was still off, and
Appellant was still wearing only his underwear. Appellant again said to her that “it
wasn’t good for people to fight.”
Ivey asked Appellant if she could get off his lap, and he said yes. Ivey was
crying, and Appellant unlocked the door. Ivey grabbed her shoes and left Appellant’s
apartment. Ivey went straight to her apartment and unlocked the door. She saw signs
that her dad was home. Ivey’s father had gotten home and discovered that Ivey was
not there. He was worried and had gone to look for her. When she found her dad,
Ivey was crying. She told him that a neighbor had gotten on top of her and touched
her private part. Ivey’s dad called the police.
Ivey took her dad to Appellant’s door, and her dad knocked. Appellant
answered the door, and Ivey’s dad confronted him. Appellant indicated that he did
4
not know what Ivey’s dad was talking about. Appellant tried to leave, saying that he
was going to the gym. Ivey’s dad told Appellant he could not leave before the police
arrived. Ivey’s dad stood in front of Appellant, preventing him from leaving.
Officer J. Doguim of the Houston Police Department arrived on the scene. He
spoke with Ivey, who told him that Appellant had touched her private parts with his
private part.
Officer Doguim handcuffed Appellant and informed him that he was being
detained for a sexual assault investigation. Officer Doguim placed Appellant in the
back seat of his police car. Appellant told Officer Doguim that he had seen Ivey that
day in the leasing office. Appellant said that he was in the leasing office to report
that people were fighting in the apartment complex. He said that Ivey walked in to
the office while he was there. Appellant indicated that he tried to assist her in finding
her parents. Appellant told Officer Doguim that Ivey’s parents should have watched
her better and that the police should investigate that.
Appellant signed a consent form, permitting the police to search his
apartment. During the search, Officer Doguim collected the linens from Appellant’s
bed and his clothing from the bedroom floor.
Appellant was transported to the central jail. He was placed on a 24-hour hold,
pending a sexual-assault examination of Ivey that evening and a forensic interview
of Ivey the following morning at the Children’s Assessment Center.
5
Appellant spent the night in jail. He was questioned by police and gave an
audio-recorded statement. Before the questioning began, Appellant was informed of
his Miranda3 rights. During the questioning, Appellant requested an attorney, and
the questioning stopped.
Appellant was charged with the offense of aggravated sexual assault of a child
under 14 years of age. The indictment charged that Appellant had “intentionally and
knowingly cause[d] the sexual organ of [Ivey], a person younger than fourteen years
of age, to contact the sexual organ of [Appellant].”
Appellant filed a motion to suppress in which he requested the trial court to
suppress “any and all confessions and statements” taken from him. He alleged that
his statements to the police were “illegal and tainted by [his] illegal and unlawful
detention and arrest.” After a hearing, the trial court denied the motion.
Before trial, the State filed a notice of intent to use evidence of prior
convictions and extraneous offenses. One of the extraneous offenses was indecent
exposure, involving an eight-year-old girl. The State averred that it intended to
introduce evidence at trial showing that, on July 10, 2016, Appellant had
“intentionally and knowingly, with intent to arouse and gratify [his] sexual desire,
intentionally and knowingly expose[d] his genitals” to K.B, a child who was under
17 years of age. The trial court conducted hearings, both before and during trial,
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
6
regarding the admission of evidence of the indecent exposure offense. The trial court
determined that the evidence could be admitted.
The case was tried to a jury. Besides Ivey, the State offered the testimony of
Ivey’s father, her aunt, Silberg, and the nurse who conducted Ivey’s sexual assault
examination.
The jury also heard testimony of K.B. and her mother, Arsheena, regarding
the extraneous indecent exposure offense. In sum, their combined testimony showed
that, in July 2016, eight-year-old K.B. and her brother were riding their scooters on
the sidewalk in front of their apartment. Appellant also lived in the apartment
complex. Appellant approached K.B. and asked her to race him but told her brother
to go in a different direction. K.B. went with Appellant, and they ended up at
Appellant’s apartment. Once in the apartment, Appellant exposed his penis to K.B.
and tried to put his penis in her mouth. K.B. ran out the front door.
In her testimony, Arsheena said that K.B. and her brother were riding their
scooters outside in front of their apartment. She was frequently checking on the
children when she noticed K.B. was gone. Arsheena went to look for K.B. She soon
saw K.B. running toward her, dragging her scooter. Arsheena testified that K.B. was
crying, yelling, and screaming, saying that a man had tried to make “her suck his
penis.”
7
Arsheena called 9-1-1 on her cell phone while walking with K.B. toward
Appellant’s apartment. Before they got to his apartment, Appellant approached them
on the path by the apartment complex’s pool. K.B. yelled “there’s the man, that’s
him, that’s him, mom.” Appellant started yelling at K.B., saying she was lying.
Appellant tried to explain what had happened, saying that he had run into K.B. in
the laundry room and scared her. Arsheena told Appellant to get away from them
and took a picture of Appellant with her cell phone during the interaction.
One week later, the police separately showed K.B. and Arsheena a photo-
lineup with six photos. K.B. could not identify Appellant, but Arsheena picked
Appellant’s photo out as the man involved in the incident with her daughter. At trial,
K.B. could not identify Appellant in the courtroom as the man who had exposed
himself to her. Arsheena made an in-court identification of Appellant as the man she
photographed with her cell phone at the apartment complex after K.B. identified him
to her as the man who had exposed his penis.
The defense did not call any witnesses. The jury found Appellant guilty of the
offense of aggravated sexual assault of Ivey. The jury assessed punishment at 59
years in prison. This appeal followed.
Sufficiency of the Evidence
In his first issue, Appellant contends that the evidence was insufficient to
support the judgment of conviction.
8
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single standard
of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This standard of
review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979).
See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
Pursuant to the Jackson standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319; In re Winship, 397 U.S. 358, 361 (1970); Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). We can hold evidence to be insufficient under the Jackson standard in two
circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320;
Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to
9
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate
court presumes that the fact finder resolved any conflicts in the evidence in favor of
the verdict and defers to that resolution, provided that the resolution is rational. See
Jackson, 443 U.S. at 326.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not 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.” Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Analysis
1. Contact of Ivey’s sexual organ by Appellant’s sexual organ
To prove Appellant was guilty of the offense of aggravated sexual assault of
a child, the State needed to show that Appellant intentionally or knowingly caused
the sexual organ of K.B., a child younger than 14 years of age, to contact Appellant’s
sexual organ. See TEX. PENAL CODE § 22.021(a)(1)(B)(iii), (a)(2)(B). Appellant
contends that “[n]o rational factfinder could have concluded that appellant had
sexual contact with [Ivey] by causing her sexual organ to contact his own sexual
10
organ” because there was “[a]bsolutely no evidence” that Appellant “ever touched
[Ivey’s] sexual organ” except through his clothing. Appellant avers that there was
no evidence of contact between his and Ivey’s sexual organs because Ivey testified
that Appellant “wore his boxer brief underwear and touched her sexual organ with
his sexual organ through his clothing.” Appellant intimates that the evidence is
insufficient to support his conviction because it did not show skin-to-skin contact
between his sexual organ and Ivey’s sexual organ.
Ivey testified that, when she went into Appellant’s apartment, she was wearing
her school clothes, a skirt and a top. Appellant told Ivey to lay down on his bed. She
said that Appellant took off her underwear but left on her other clothing. Appellant
took off his pants and his shirt but left on his underwear, which were boxer shorts.
Appellant pulled the covers off Ivey and laid on top of her. The State then asked
what happened next. Ivey provided the following testimony:
A. And then he goes on top of me. I don’t know if he had his hands up
or down, but I just knew I couldn’t get out. So he goes on top of
me. And he, um—I don’t know if his underwear were on or off
during—he was putting his private part into mine on the outside.
Q. Okay. All right. So how were you able to tell it was his private part?
A. Because that’s the only thing he was touching me with.
Q. All right. Could you see his hands when this was happening?
A. Yes.
Q. Where were his hands?
11
A. In front of me just next to my head . . .
....
Q. Okay. And do you remember what that felt like—so you said he—
you felt his private part. Where did you feel his private part?
A. On my private part.
Q. What did that feel like?
A. It hurt. And it felt weird ’cause this is the first time this ever
happened to me.
....
Q. All right. And could you tell whether it was just on top of your
private or can you—could you tell if it was inside of your
private?
A. It was both. How I knew is because I can feel it inside and then I feel
it out.
We are mindful that factfinders are free to use their common sense and apply
common knowledge, observations, and experience gained in the ordinary affairs of
life when making inferences that may reasonably be drawn from the evidence.
Boston v. State, 373 S.W.3d 832, 837 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d
321 (Tex. Crim. App. 2013); see Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d). Ivey testified that Appellant was only wearing
boxer shorts and that she felt Appellant’s penis inside her vagina. It would be within
the common knowledge of the jurors that boxer shorts have a fly and an elastic waist
band, each of which allows for the exposure of a penis outside the boxer shorts
12
without removing the shorts. From Ivey’s testimony and their common knowledge,
the jurors could have reasonably inferred that there was skin-to-skin contact between
Appellant’s sexual organ and Ivey’s sexual organ.
We do not suggest that skin-to-skin contact is required for “contact” as that
term is used in the context of the offense of aggravated sexual assault of a child by
contact. To the contrary, courts, including this Court, have held that “contact” in this
context includes contact through clothing. See IslasMartinez v. State, 452 S.W.3d
874, 879–80 (Tex. App.—Dallas 2014, pet. ref’d); Jones v. State, Nos. 01–98–
01400–CR & 01–00–00489–CR, 2000 WL 675714, *2 (Tex. App.—Houston [1st
Dist.] May 25, 2000, pet. ref’d) (not designated for publication); Caldwell v. State,
No. 03–96–00603–CR, 1998 WL 10280, *2 (Tex. App.—Austin Jan. 15, 1998, no
pet.) (not designated for publication). Thus, the evidence showed contact between
Appellant’s sexual organ and K.B.’s sexual organ even if Appellant’s penis was
covered by the cloth of his underwear while he touched it to the bare skin of Ivey’s
sexual organ and inserted it into her vagina. See IslasMartinez, 452 S.W.3d at 879–
80; Jones, 2000 WL 675714, at *2.
2. Jurors’ role: weighing evidence and resolving evidentiary conflicts
13
Appellant claims that no rational juror could have believed Ivey’s claim that
Appellant sexually assaulted her because some of the State’s evidence was either
inconclusive or contained discrepancies and inconsistencies. Specifically, Appellant
points to the following:
• The nurse who performed Ivey’s sexual assault examination testified
that the examination showed that Ivey had an abrasion on her labia
minora. The nurse stated that the abrasion was consistent with the
events reported by Ivey involving Appellant but also could have been
caused by some other blunt force trauma such as Ivey’s fingernail
scratching her labia minora when she wiped herself.
• Ivey testified that, after they left the leasing office, Appellant took her
by the wrist and dragged her past her family’s apartment door on the
way to his apartment. She said that, as she passed her door, she was
“freaking out” and crying. Ivey testified that she asked Appellant if she
could go to her apartment, but Appellant did not respond and kept
walking to his apartment. Appellant points to evidence indicating that,
after leaving the leasing office, Appellant and Ivey did not walk past
her apartment door but would have reached his apartment first.
• The testimony of Ivey, her father, and her aunt showed a timeline for
when the incident occurred that was about one-and-a-half hours earlier
than what other evidence showed.
• Ivey testified that the cover on Appellant’s bed was red when other
evidence showed it was brown. Ivey testified that Appellant was
wearing a plaid shirt when the evidence showed that the shirt collected
by Officer Doguim from Appellant’s bedroom floor was striped. Ivey
stated that Appellant had driven up to her when she was on her bike in
a white or light gray car, but evidence showed Appellant’s car was dark
blue.
• Ivey’s testimony indicated that, when she went into the leasing office
with Appellant, she was not comfortable with Appellant, and she
thought at the time she was making a bad decision going with him.
14
Silberg, the administrative assistant in the office, testified that, when
Ivey was in the leasing office with Appellant, Ivey was friendly, quiet,
and did not seem alarmed.
• Ivey could not identify Appellant in the courtroom.
Appellant also claimed that Ivey had reason to lie about the sexual assault.
She was not supposed to leave the apartment while her parents were not home.
Appellant theorizes that Ivey lied to distract from her breaking her parents’ rules.
A child-sexual-assault complainant’s uncorroborated testimony, standing
alone, is sufficient to support a defendant’s conviction. See TEX. CODE CRIM. PROC.
art. 38.07; see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978)
(holding victim’s testimony of penetration by appellant, standing alone, was
sufficient to support conviction); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—
Houston [14th Dist.] 2002, pet. ref’d) (stating testimony of victim, standing alone,
was sufficient evidence). The State has no burden to produce physical or other
corroborating evidence. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston
[1st Dist.] 2014, no pet.). Thus, Ivey’s testimony alone was enough to support the
jury’s guilty finding.
While the contradictory and inconsistent evidence raises questions of fact and
credibility, the jury had the inherent authority to decide who and what to believe.
See Canfield v. State, 429 S.W.3d 54 65 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d); Billy v. State, 77 S.W.3d 427, 428 (Tex. App.—Dallas 2002, pet. ref’d). In
15
addition, appellate courts give wide latitude to a child complainant’s testimony of
sexual abuse. Jones, 428 S.W.3d at 169; Gonzalez Soto v. State, 267 S.W.3d 327,
332 (Tex. App.—Corpus Christi 2008, no pet.). A child’s description of what
happened to her need not be precise, and she is not expected to express herself at the
same level of sophistication as an adult. See Villalon v. State, 791 S.W.2d 130, 134
(Tex. Crim. App. 1990); see also Buentello v. State, 512 S.W.3d 508, 516 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) (concluding that any alleged deficiencies
in child victim’s testimony—such as whether child told forensic investigator during
her interview about penetration or disclosed additional aspects of assault at trial that
she had not previously mentioned—did not diminish legal sufficiency of her direct
trial testimony on issue).
By returning a guilty verdict, we must infer that the jury believed Ivey’s
testimony indicating that Appellant sexually assaulted her by placing his penis on
the inside and outside of her vagina, and we defer to that determination. See Laster,
275 S.W.3d at 524–25. It is the exclusive role of the fact finder “to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences[.]”
Buentello, 512 S.W.3d at 516 (quoting Jackson, 443 U.S. at 319). We may not “re-
evaluate the weight and credibility of the evidence and substitute our judgment for
that of the fact-finder.” Hernandez. v. State, 268 S.W.3d 176, 179 (Tex. App.—
Corpus Christi 2008, no pet.) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
16
Crim. App. 1999)). Even contradictory evidence in the record will not diminish the
sufficiency of evidence that otherwise supports the jury’s verdict. Buentello, 512
S.W.3d at 516. We disagree with Appellant that Ivey’s testimony was so
contradicted by other evidence that a reasonable fact finder could not have believed
her testimony regarding Appellant’s act of sexually assaulting her.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational fact finder could have found, beyond a reasonable doubt, each element
necessary to support the finding that Appellant committed the offense of aggravated
sexual assault as charged in the indictment. See Jackson, 443 U.S. at 318–19;
Williams, 235 S.W.3d at 750. Accordingly, we hold that the evidence was sufficient
to support the judgment of conviction.
We overrule Appellant’s first issue.
Extraneous-Offense Evidence
In his third issue, Appellant contends that the trial court erred by admitting
extraneous-offense evidence showing that, in July 2016, Appellant had exposed his
penis to eight-year-old K.B. and tried to make her perform oral sex on him. The trial
court conducted two hearings to determine whether to admit the testimony. During
the hearings, K.B. and her mother, Arsheena, testified.
K.B. testified that she was riding her scooter in her apartment complex.
Appellant approached her and asked her to race. They ended up at Appellant’s
17
apartment. Once inside, K.B. testified that Appellant exposed his penis to her and
tried to make her put his penis in her mouth.
K.B. ran away. Arsheena testified that K.B. ran up to her crying and yelling
that a man had tried to make her suck his penis. K.B. started to lead Arsheena to
Appellant’s apartment when they ran into Appellant on the path. Appellant said that
K.B. was lying. He stated that he had run into her in the laundry room and scared
her. Arsheena called the police and took a photo of Appellant with her cell phone.
In court, Arsheena identified Appellant as the man who K.B. had identified at the
time of the incident, but K.B. was not able to identify Appellant in court.
The trial court ruled that evidence of the extraneous offense involving K.B.
would be admitted. K.B., Arsheena, and an investigating police officer testified at
trial.
A. Legal Principles
A trial court’s ruling on the admissibility of extraneous offenses is reviewed
under an abuse-of-discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex.
Crim. App. 2011). If the trial court’s ruling is within the “zone of reasonable
disagreement,” there is no abuse of discretion, and we will uphold the trial court’s
ruling. Id.
When a defendant is tried for certain sex offenses against children, including
aggravated sexual assault, the State may introduce evidence that the defendant has
18
committed a separate sex offense against another child. TEX. CODE CRIM. PROC.
art. 38.37, § 2(b); see Caston v. State, 549 S.W.3d 601, 608 (Tex. App.—Houston
[1st Dist.] 2017, no pet.). This evidence is admissible for any relevant purpose,
including as proof of the defendant’s character and propensity to act in conformity
with his character. TEX. CODE CRIM. PROC. art. 38.37, § 2(b); Jacobs v. State, 560
S.W.3d 205, 207 (Tex. Crim. App. 2018). Before admitting “evidence that the
defendant has committed a separate offense” of a sexual nature against a child,
Article 38.37 requires the trial court to conduct a hearing to determine that the
evidence sought to be admitted will be adequate to support a jury finding that the
defendant committed the separate offense beyond a reasonable doubt. TEX. CODE
CRIM. PROC. art. 38.37, §§ 2(b), 2-a.
B. Analysis
Appellant contends that the testimony of K.B. and Arsheena, offered at the
Article 38.37 hearings, was not sufficient to establish, beyond a reasonable doubt,
that Appellant had committed the offense of indecent exposure. Specifically,
Appellant asserts that the trial court abused its discretion in admitting K.B.’s and
Arsheena’s testimony because “no rational factfinder could have found [him] guilty
of exposing himself” to K.B. based on K.B.’s and Arsheena’s testimony at the
hearings. Appellant asserts that Arsheena’s “limited exposure to [him at the time of
the incident] was wholly insufficient to support her identification,” and “K.B. was
19
completely unable to identify” him in court. In other words, Appellant contends that
the testimony was insufficient to identify him as the man K.B. claimed had exposed
himself to her.
Arsheena testified that, on the day of the incident, Appellant was the man who
K.B. identified in the apartment complex as the person who had exposed his penis
to her and tried to make her put it in her mouth. The testimony indicated that the
offense had just happened to K.B. when she pointed Appellant out to Arsheena.
Arsheena said that K.B. came running up to her crying, screaming, and yelling about
what had just happened. They started walking and ran into Appellant. K.B. and
Arsheena both testified that K.B. told Arsheena that the man they encountered was
the man who had just exposed himself to her. Appellant did not deny that he been
with K.B., instead, he said that she was lying and that he had scared her in the laundry
room. Arsheena indicated that she was face to face with Appellant when they spoke.
Arsheena testified that she took a picture of Appellant with her cell phone. Arsheena
identified Appellant in court as the man K.B. had identified as the person who had
exposed himself to her. Arsheena’s testimony, in conjunction with K.B.’s testimony,
provides support for Arsheena’s identification of Appellant.
In short, the admissibility of K.B.’s and Arsheena’s testimony turned on the
trial court’s assessment of their credibility and the weight to be given the evidence.
We cannot say the trial court abused its discretion in determining that K.B.’s and
20
Arsheena’s testimony would support a rational jury’s determination beyond a
reasonable doubt that Appellant committed the extraneous offense of indecent
exposure against K.B. See Ryder v. State, 514 S.W.3d 391, 399 (Tex. App.—
Amarillo 2017, pet. ref’d) (holding that admissibility of witness’s testimony about
extraneous offense did not violate Article 38.37 because admissibility of testimony
turned on trial court’s assessment of witness’s credibility and weight to be given
evidence).
We overrule Appellant’s third issue.
Suppression of Evidence
In his second issue, Appellant contends that the trial court abused its discretion
when it did not suppress statements he made while handcuffed in the backseat of
Officer Doguim’s police car.
A. Appellant’s Motion to Suppress and Suppression Hearing
Appellant filed a motion to suppress in which he requested the trial court to
suppress “any and all confessions and statements” taken from him. He alleged that
his statements to the police were “illegal and tainted by [his] illegal and unlawful
detention and arrest,” citing various constitutional and statutory provisions.
At the motion to suppress hearing, Officer Doguim testified that, when he
arrived to investigate the sexual assault of Ivey, there were already police officers
on the scene. He spoke with Ivey, who identified Appellant as the person who had
21
sexually assaulted her. Officer Doguim briefly spoke with Appellant to identify him
and to confirm he was Ivey’s neighbor. He then placed Appellant in handcuffs and
put him in the backseat of his police car. Officer Doguim explained to Appellant that
he was being detained for a sexual-assault investigation. Appellant consented to a
search of his apartment, and Officer Doguim explained the consent-to-search form
to Appellant. Officer Doguim told Appellant that he would be taken to the central
jail and detained there until he spoke to an investigator.
Officer Doguim testified that he did not question Appellant about the sexual
assault. However, he stated that Appellant made “several spontaneous utterances
while in the back seat of my vehicle.” When asked what those were, Officer Doguim
testified, “[Appellant] had said that he—that the little girl, [Ivey] should not be—
have been left alone. He said that the police department should look into why she
was by herself, and then he continued, as I was not talking to him, continued to say
that he felt that she should not be left alone.” Officer Doguim stated that he
transported Appellant to the central jail where he was placed on an investigative
hold.
A. Flowers, an investigator with the Houston Police Department’s sex crimes
division, also testified at the motion to suppress hearing. She stated that Appellant
was kept overnight at the jail because he was placed on an “investigative hold.”
Investigator Flowers indicated that the police wanted Ivey to undergo her sexual
22
assault examination and undergo a forensic interview before they interviewed
Appellant.
After Appellant spent the night in jail, at around 9 a.m., Investigator Flowers
read Appellant his Miranda rights, and Appellant agreed to be interviewed by police.
The interview was audio-recorded. During the interview, Appellant requested an
attorney and the interview stopped.
During the suppression hearing, Appellant asked Investigator Flowers
whether an arrest warrant had been issued for Appellant before the interview and
whether Appellant had been taken before a magistrate prior to the interview. She
said that, before the interview, an arrest warrant had not been issued, and Appellant
had not been taken before a magistrate.
The State argued that, “given the fact that the Miranda warnings were given
and intentionally and knowingly and voluntarily waived,” the audio-recorded
statement should “com[e] into evidence and be[] played for the jury at trial.”
Appellant responded,
Your Honor, there was no warrant for the defendant’s arrest, and there
doesn’t appear to me to be an exception for a warrantless arrest as they
have listed under Section 14 of the Code of Criminal Procedure, and
the defendant was not taken before a magistrate without unnecessary
delay even if there was an exception to the arrest without a warrant.
The interview is the result of this illegal arrest and the defendant
not being taken before the magistrate, and we would ask the Court to
not admit the warrant [sic] because it’s not—it’s not taken pursuant to
a valid arrest of the defendant.
23
The State responded that Appellant was detained overnight on an investigative
hold because the police officers wanted Ivey to undergo a forensic interview before
they interviewed Appellant, so they would have information from Ivey’s interview
when they questioned Appellant. Ivey’s forensic interview was not conducted until
the morning after the incident occurred. The trial court asked the State, “But they
felt the need to Mirandize the defendant just in an abundance of caution; is that what
your argument is?” The State indicated that it was an appropriate procedure. Defense
counsel responded,
Judge, the defendant was clearly placed in handcuffs, placed in the back
of a police car, removed to his home and held and arrested at the central
jail, and interviewed at the central jail, where he had been held since at
least 8:00 p.m., according to Officer Flowers. He was actually arrested
and placed in the police car earlier than that. Using the word detained
is a—he was arrested. He could not leave. He was in the back of a police
car handcuffed. There is—what the State must show is that there’s some
exception to the warrant requirement.
The trial court asked the defense, “So the little girl’s statement, as I understand
the officer’s testimony, about what happened and identifying him as the perpetrator
would not be sufficient for an officer to make at least an investigative detention and
place someone in custody for investigation?” The defense answered, “[It] might
allow them to detain the defendant, without a warrant, but they held the defendant
in jail for over 12 hours, until they interviewed him the next day, until they
24
completed other investigation. That surely goes . . . beyond a Terry4 type temporary
detention.” The State again asserted that placing Appellant on an investigative hold
was appropriate “to follow up both forensically and medically with the little girl to
figure out what next steps needed to be made,” given the nature of the allegations.
The Court then made its ruling on the motion to suppress as follows: “The
motion to suppress is denied. The Court’s going to make a finding that the defendant
was properly Mirandized. The defendant acknowledged that he understood his rights
and he voluntarily and intelligently waived his rights and gave a voluntary statement
without any persuasion and/or compulsion, so the statement’s admissible.”
Even though the trial court ruled it was admissible, the State did not offer
Appellant’s audio-recorded statement into evidence at trial.
C. Analysis
On appeal, Appellant complains that the trial court did not suppress his
statements—made while handcuffed in the backseat of Officer Doguim’s police
car—that Ivey should not have been left alone and that the police department “should
look into why she was by herself.” Appellant contends that these statements should
have been suppressed because they were a product of an illegal arrest. In his brief,
Appellant claims that Ivey’s father “illegally arrested” him when he would not let
Appellant leave his apartment until the police arrived. Appellant claims that Officer
4
See Terry v. Ohio, 392 U.S. 1 (1968).
25
Doguim then assumed the arrest by placing him in handcuffs and then placing him
in the back of the police car. Appellant asserts that, as a result, his “statements that
the police should have been focusing on the girl’s parents for not supervising her
were the product of an illegal arrest and should have been suppressed.”
A defendant’s assertion of grounds for suppression raised in an appellate court
must comport with his articulated grounds for suppression in the trial court, or the
grounds are not preserved. See TEX. R. APP. P. 33.1(a)(1); Swain v. State, 181 S.W.3d
359, 365 (Tex. Crim. App. 2005); see also Thornburg v. State, No. 02-14-00453-
CR, 2015 WL 4694094, at *8 (Tex. App.—Fort Worth Aug. 6, 2015, pet. ref’d)
(mem. op., not designated for publication) (“Because Thornburg’s motion to
suppress and his argument at the suppression hearing centered on whether there was
consent to search his apartment, he forfeited his complaint on appeal that the search
was not justified by other exceptions to the warrant requirement, such as the plain-
view doctrine and exigent circumstances.”).
Appellant’s written motion to suppress contained general assertions of
constitutional and statutory violations, but nothing in the motion alerted the trial
court to a complaint that Ivey’s father had “illegally arrested” him. Nor was there
any mention at the suppression hearing of the father’s actions.
Also, as discussed in detail above, the subject matter of the suppression
hearing was Appellant’s in-jail audio-recorded statement made after he had spent
26
the night in jail, had been Miranda-ized, and had waived his rights. Nothing indicates
that the trial court was appraised of any request by Appellant, seeking to suppress
the remarks he made in the back of the police car. And, read in context, the trial
court’s ruling at the end of the hearing was only a determination that Appellant’s in-
jail statement was admissible.
We conclude that Appellant did not apprise the trial court of his complaint
that Ivey’s father illegally arrested him or his complaint that his remarks in the back
of the police car should be suppressed.5 Because Appellant’s arguments on appeal
do not comport with his trial-court complaint, they are not preserved. See TEX. R.
APP. P. 33.1(a); Swain, 181 S.W.3d at 365; see also Smith v. State, 532 S.W.3d 839,
841 (Tex. App.—Amarillo 2017, no pet.) (“[T]he grounds [for suppression] urged
below do not comport with those urged on appeal, and that effectively waives the
latter as basis for reversal.”).
We overrule Appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
5
When Officer Doguim testified at trial about the remarks Appellant made in the
police car’s backseat, the defense made no objections to the testimony.
27
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
28