- This is an unpublished opinion and does not serve as precedent, however the issues presented are important for future cases.
This case serves as a good reminder that even with an admission/confession, we must independently corroborate. Appellant was convicted by a jury for four counts of aggravated sexual assault on his three-month-old daughter. Of his own accord, appellant confessed to his wife and some members of his church three sexual acts upon his 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 penis, and he “stuck [his] penis to her mouth.” In the second instance, on or about September 18, 2011, he “more intentional[ly]” allowed [the infant] to suck on his penis. The third instance occurred on or about September 24, 2011, when Appellant was changing [his daughter’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 and ejaculated onto the floor of the nursery.” Appellant admitted the same to the Detective who interviewed him. In response to this information, the Detective went to Appellant’s house and asked Appellant’s wife for permission to search the house. Upon consent, a black light indicted potential semen in the nursery near the changing table. Consent was given to remove that section of the carpet. DNA analysis confirmed the stain was Appellant’s semen.
Appellant went back to the police station to confess another instance of sexual abuse of his infant, and submitted to a buccal swab. “Appellant 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 [the detective] his laptop computer that he said he had used to watch pornography and told [the detective] where she could find his phone’s memory card. He told [the detective], however, that he had reformatted the memory card.” Digital forensics revealed that the hard drive was overwritten, so no information could be retrieved. The memory card was also found to be reformatted.
Attack on Search Warrant: Before trial, a motion to suppress the evidence was filed, and subsequently denied. At trial, when the Government admitted the carpet section along with the permission slip signed by Appellant’s wife; defense counsel on his own accord stated “no objection.” While it is settled law that when a pretrial motion is denied, appellant need not object to the evidence at trial to preserve the issue for appeal Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986); when the defense affirmatively asserts however, that he has no objection he waives any error in the admission of the evidence despite the pretrial motion. Thomas v. State, 408 S.W.3d 877, 885–86 (Tex.Crim.App.2013). The appellate court here, found waiver of the issue.
Attack on Corpus Delicti: Appellant claims that the Government failed to corroborate his confession with respect to all of the counts (except the nursery-ejaculation count). “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 exist other evidence showing that a crime has in fact been committed.” Rocha v. State, 16 S.W.3d 1, 4 (Tex.Crim.App.2000).” The State was in a tough spot here because other than admitting the carpet, the confessions, and the digital forensics (showing the wiping and reformatting) there did not appear any additional corroborating evidence. Ultimately the court here agreed, and did not find that the semen in the nursery or the affirmative act of wiping the hard drives corroborated the other three confessed to acts.
Attack on Factual Sufficiency: With respect to the nursery incident, appellant claims that no rational jury could find beyond a reasonable doubt that appellant’s penis made contact with his daughter’s anus. In his 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 thrusting, 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.” The court held that Appellant’s confession gave the jury a visual image from which they could draw reasonable inferences. The fact that Appellant admitted to moving his daughter’s “bottom apart” and touching “between her cheeks” with his penis while moving back and forth was enough for a reasonable inference that contact of the anus was made.
Practitioner Notes: Confessions are great, and really help with proof issues. However we must always remember to corroborate admissions with whatever facts we can find. This is not meant to Monday morning quarterback this case (who knows if any other evidence was available). Perhaps during one of this guy’s multiple confessions though there was something to corroborate (i.e., what porn he was watching and where did he acquire it, where was mom at the time…maybe a place which could be substantiated with evidence).
Counts 1, 2, and 4 are reversed. Count 3 is affirmed. The jury assessed a life sentence for each count.