## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00487 - CR

CHRISTOPHER ADRIAN M ILLER APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Christopher A d rian M iller appeals his conviction s o f four counts of aggravated sexual assault of his daughter Madison

. 2 We affirm in part and

reverse and render in part

.

1 See Tex. R. App. P. 47.4.

2 To prote ct the anonymity of the child in this case, we will use aliases to refer to some of the individuals named herein. See Daggett v. State , 187 S.W.3d2 Background Facts In late November 201 1 , Denise Callahan, then a detectiv e with the White Settlement Police Department, received a report from the Department of Family and Protective Services concerning Appellant. Detective Callahan telephoned Appellant, and he agreed to come to the police station for an interview. In the int erview, Appellant admitted to three sexual interactions with his three

- month

- old daughter. The first instance occurred around September 6, 2011 . Appellant was watching a pornographic movie while holding Madison on his lap. She reached for his erect peni s, and he “stuck [his] penis to her mouth.” In t he second instance, on or about September 1 8 , 2011 , he “more intentional[ly]” allowed Madison to suck on his penis. The third instance occurred on or about September 24, 2011 , when Appellant was changing Ma dison ’s diaper on a changing table in her nursery

. He “notice[d] that the height of the changing table was the right height for [him] to put [his] penis under her,” so he placed his penis “under her butt cheeks and moved back and forth.” He pulled away a nd ejaculated on to the floor of the nursery. Appellant eventually admitted what he had done to his wife and some church members. Some of the church me mbers then informed the police.

444, 446 n.3 (Tex. Crim. App. 200 5); McClendon v. State , 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).3 Detective Callahan went to Appellant’s house , where she spoke to Appell ant’s wife, Stacy . Callahan asked Stacy ’s permission to search the house. Stacy agreed and signed a “permission to search” form. A crime scene technician used a black light in the nursery. The black light revealed stains on the floor near the changing table where Appellant stated he had ejaculated. Callahan then asked Stacy ’s permission to remove a section of the carpet for testing “out of courtesy, because it was a rent[al] house.” Callahan wrote on the permission to search form, “Removed sample of c arpet out of [ Madison] ’s room,” and Stacy signed next to the notation. A few days later, Appellant called Callahan and said that he had

“ remembered a fourth incident and that he would like to come talk to [her] about

some additional information. ” Appella nt returned to the police station and confessed to having “placed [his] penis on [Madison’s] vagina,” taking a photograph of it with his cellphone , and “immediately delet[ing] it.” He gave Callahan his laptop computer that he said he had used to watch por nography and told Callahan where she could find his phone’s memory card. He told Callahan, however, that he had reformatted the memory card

. Appellant al so consented to a buccal swab. Forensic tests showed that Appellant’s computer had been cleaned the day before he brought the computer to the police department using a program that overwrites files so that they are unrecoverable. The memory card from the4 phone had been reformatted as Appellant had claimed. DNA testing demonstrated that the stain on the carpet sample was Appellant’s semen. Appellant was charged with four counts of aggravated sexual assault. He pleaded not guilty to all four charges. After a trial, a jury found Appellant guilty on all counts. The jury assesse d punishment of a life sen tence for each count , which the trial court ordered to run concurrently . Appellant then filed this appeal. Discussion I. Warrantless Search In Appellant’s first issue, he argues that the State violated his Fourth Amendment rights by searching his house w ithout a warrant and by exceeding the scope of Stacy ’s consent. He also argues that Stacy ’s consent to remove the carpet sample was invalid becau se she only rented the house. Appellant filed a motion to suppress the evidence taken from his house during t he search. After a hearing, the t rial court denied the motion. At trial, the State offered into evidence the permission form signed by Stacy and the carpet sample obtained during the search. The State argues that Appellant waived this issue because at t rial his attorney stated that he had “no objection” to the admission of the permission form and carpet sample. When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to p reserve error on appeal. Moraguez v. State , 701 S.W.2d 902, 904 (Tex. Crim. App. 1986)

. However, when the defendant affirmatively asserts during trial that he has “no objection” to the5 admission of the complained

- of evidence, he waives any error in the a dmission of the evidence despite the pretrial ruling. Moraguez , 701 S.W.2d at 904 ; see Thomas v. State , 408 S.W.3d 877, 885

– 86 (Tex. Crim. App. 2013) (holding that

“ if from the record as a whole the appellate court simply cannot tell whether an abandonmen t was intended or understood ,” an “affirmative ‘no objection’ statement will, by itself, serve as an unequivocal indication that a waiver was both intended and understood ”). Because defense counsel specifically stated that he had “no objection” to the adm ission of the carpet sample, and because the record does not plainly indicate an intention not to abandon the claim of error, we hold that the issue has not been preserved for appeal . We ov errule Appellant’s first issue. II. Corpus Delicti In A ppellant’ s second issue, he argues that the State failed to corroborate his confession as to Counts One, Two, and Four. 3 An extrajudicial confession by the accused is insufficient to support a conviction unless it is corroborated. Gribble v. State , 808 S.W.2d 65, 70 (Tex. Crim. App. 1990) , cert. denied, 501 U.S. 1232 (1991)

. The corpus delicti rule is a rule of evidentiary sufficiency that states that “ an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction; there must exis t other evidence showing that a

3 In Counts One and Two, the State alleged that Appellant intentionally or knowingly caused Madison ’s mouth to contact his penis. In Count Four, the State alleged that Appe llant intentionally or knowingly caused Madison ’s sexual organ to contact his penis.6 crime has in fact been committed.” Rocha v. State , 16 S.W.3d 1, 4 (Tex. Crim. App. 2000)

. This other evidence need not be sufficient by itself to prove the offense; “all that is required is that there be some evidence whic h renders the commission of the offense more probable than it would be without the evidence.” Williams v. State , 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (quoting Chambers v. State , 866 S.W.2d 9, 15

– 16 (Tex. Crim. App. 1993) , cert. denied, 511 U.S. 1100 (1994) ). The State may prove the corpus delicti by circumstantial evidence. See McDuff v. State, 939 S.W. 2d 607, 614 (Tex. Crim. App. ), cert. denied , 522 U.S. 844 ( 1997). Thus, where there is an extrajudicial statement, as exists in this case, the corp us delicti rule requires us to consider all the record evidence, other than the extrajudicial statement, in the light most favorable to the verdict and to determine whether that evidence tends to establish that someone committed an aggravated sexual assaul t against the victim. Fisher v. State , 851 S.W.2d 298, 303 (Tex. Crim. App. 1993)

. The evidence presented included the carpet sample from Madison ’s nursery with Appellant’s semen on it and testimony from a digital forensics examiner who stated that Appel lant’s computer and phone had been cleaned and reformatted so that evidence could not be recovered from them. In his confession, Appellant stated that Count s One and Two occurred on the couch and Count Four occurred on the bed, not in the nursery where th e assault in Count Three occurred. He did not state that he ejaculate d during Counts One, Two, or Four. Detective Callahan testified that there was no physical evidence7 regarding Count Four

. The digital forensics expert testified that any photos or othe r digital evidence had been destroyed. The only corroborating evidence that exists corroborates only Count Three. The State was required to present evidence corroborating each count, and it did not do so. See Daniels v. State , No. 0 2

- 06

- 00 258

- CR, 2007 W L 2460263 , at *4 (Tex. App.

— Fort Worth Aug. 31, 2007, no pet.) (mem op., not designated for publication) (“[W] e sim ply cannot agree with the State’s argument that Washington’ s testimony, which
app ropriately corroborated Daniels’ s confession as to Count 1, also corroborated his statements regarding the alleged incidents charged in Counts 2 and 3. ”). The evidence, viewed in the light most favorable to the verdict, did not establish the corpus delicti for Counts One, Two, and Four. 4 We su stain Appellant’s se cond issue. III. Sufficiency of the Evidence of Count Three In Appellant’s third issue, he argues that the evidence is insufficient to support his conviction for Count Three of the i ndictment. In our due

- process review of the sufficiency of the evidence t o support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any

4 The State urges that the corpus delicti rule should be abolished and replaced with a “trustworthiness standard.” The State also acknowledges that as an intermediate cour t, we are duty bound by the precedent of the Texas Court of Criminal Appeals. Wiley v. State, 112 S.W.3d 173, 175 (Tex

. App.

— Fort Worth 2003, pet. ref’ d). We therefore decline to apply our own standard to the present case. See Abdnor v. Ovard , 653 S.W. 2d 793, 794 (Tex. Crim. App. 1983) (holding that the court of appeals erred by imposing its own standard inconsistent with the court of criminal appeals’s previous opinion).8 rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 30 7, 319, 99 S. Ct. 2781, 2789 (1979); Wi nfrey v. State , 3 93 S.W.3d 763 , 768 (Tex. Crim. App. 201 3 ). The third count alleged that Appellant intentionally or knowingly caused Madison ’s anus to contact his penis. In h is confession, Appellant stated that while he was changing Madison ’s diaper on the changing table, he put his penis “between her cheeks, underneath her, and she started laughing. ” He explained, “I was trying not to push into her. . . . I didn’t thrust , you know what I’m saying? There was no thru sting , there was just a general back and forwards.” He stated that he put her in her swing and she was “crying up a storm.” When asked if his penis contacted Madison ’s anus, he said, “Honestly, I can’t be sure.” He said further, “Had I touched her anus with my penis? I could have. You’re in that situation. I mean , I could have. I’m not saying yeah I know I did or yeah I didn’t.” Appellant argues that the uncertainty of his recollection makes it impossible for a rational jury to find beyond a reasonab le doubt that his penis contacted Madison ’s anus. He states on appeal, “The State’s argument appears to be that in the event of uncertainty, the tie[

- ]breaker defaults to the State.” It is, however, the jury’s responsibility, not ours or the State’s, “ to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts .” See Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson , 443 U.S. at 318

– 19, 99 S. Ct. at 2789 )

. T he trier of fact is the sole judge of the weight and credibility of the evidence. See9 Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)

. W e may not re
- evaluate the weight and credibility of the evidence and substitute ou r judgment for that of the factfinder. Isassi v. State , 330 S.W.3d 63 3, 638 (Tex. Crim. App. 2010). Appellant’s confession contained graphic descriptions of the sexual assault, which allowed the jury to visualize the event and draw reasonable inferences. Appellant stated that he moved his daughter’s “bottom apart” and touched “between her cheeks” with his penis. Appellant described moving his penis back and forth in that position while taking care not to penetrate her anus to avoid injury. After conside ring all the evidence, the jury could have reasonably inferred that Appellant’s penis contacted his daughter’s anus, thereby creating his need to prevent penetration. After considering the facts, the jury deduced a logical consequence from them, and we be lieve this inference is reasonable. See Trevino v. State , Nos. 02

- 10

- 00472

- CR, 02

- 10

- 00473

- CR, 02

- 10

- 00474

- CR , 2012 WL 2428522, at *5 (Tex. App.

— Fort Worth June 28, 2012, pet. ref’d ) (mem op., not designated for publication)

. B ased upon the cumulative fo rce of the evidence when viewed in the light most favorable to the verdict , we cannot say that the jury’s determination was unreasonable. See Crosby v. State , No. 01

- 01

- 00850

- CR, 2002 WL 31236302 , at *2

– 3 (Tex. App.

— Houston [1s t Dist.] Oct. 3, 2002, pet. ref’ d) (not designated for publication) (holding that complainant’s testimony that appellant “ spread her legs, and touched her bottom with his10 ‘ private ,’ and that this hurt her ” was sufficient to show that appellant had contact with complainant’s anus). W e ov errule Appellant’s third issue. Conclusion Having overruled Appellant’s first and third issues, we affirm the trial court’s judgment as to Count Three for aggravated sexual assault

. Having sustained Appellant’s second issue, we reverse Appellant’s co nvictions as to Count s One, Two, and Four and render a judgment of acquittal as to those
counts. See Tex. R. App. P. 43.2(c), 51.2(d); Daniels , 2007 WL 2460263 , at *7.

LEE GABRIEL JUSTICE PANEL: LIVINGSTON, C.J., MEIER and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: December 12, 201 3