Thaung Tin v. State
03-14-00677-CR
| Tex. App. | Apr 28, 2017Background
- Defendant Thaung Tin, a Burmese refugee, was convicted by a jury of two counts of sexual assault of a child, two counts of indecency with a child by contact, and one count of prohibited sexual conduct; sentences ran concurrently.
- Victim B.M., the daughter of Tin’s wife, testified Tin repeatedly touched her breasts and that his penis contacted her vagina "maybe two or three times" while she was in 9th–11th grades; she gave birth in March 2013 to a child the record supports was Tin’s.
- The State introduced immigration and school records listing B.M.’s birthdate as January 1, 1996, and called witnesses to explain the refugee immigration process and Burmese cultural attitudes.
- Tin challenged admission of (1) testimony by Erica Schmidt‑Portnoy about refugee processing and immigration-record accuracy and (2) testimony by Grace Hser Hti about Burmese views on adult–child sexual relations; he also raised multiple evidentiary sufficiency claims and a double‑jeopardy claim on appeal.
- The court reviewed evidentiary rulings for abuse of discretion and sufficiency under Jackson v. Virginia (whether a rational jury could find guilt beyond a reasonable doubt).
- The Court of Appeals affirmed all convictions, holding (1) Schmidt‑Portnoy’s lay testimony was permissible and helpful, (2) any error admitting Hti’s testimony was harmless, (3) the evidence was sufficient on age, contact, breast touching, and stepchild status, and (4) no double‑jeopardy violation existed because convictions rested on separate acts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Tin) | Held |
|---|---|---|---|
| Admissibility of refugee‑process testimony (Schmidt‑Portnoy) | Testimony explains how immigration records are generated and supports reliability of B.M.’s birth year; helpful to jury | Not qualified as expert; lacks personal knowledge of this specific case — so inadmissible lay or expert testimony | Admissible as lay testimony based on witness’s personal experience in refugee resettlement; helpful to determine a fact in issue; no abuse of discretion |
| Admissibility of Burmese‑culture testimony (Hti) | Helps explain cultural attitudes (offered at punishment) | Not qualified as expert; lacks personal knowledge; irrelevant | Even if erroneous, admission was nonconstitutional harmless error given overwhelming other evidence and limited role of testimony |
| Sufficiency of evidence of victim’s age (<17) | Immigration forms, school records, witness testimony, and timing of pregnancy support birth year 1996 and that offenses occurred before B.M. turned 17 | Immigration records may be inaccurate; witness uncertainty undermines age proof | Evidence sufficient under Jackson; jury reasonably inferred B.M. was under 17 when offenses occurred |
| Sufficiency as to genital contact (Count III) | B.M. testified penis touched inside of her vagina on multiple occasions; sexual contact includes contact by genitals | No evidence of hand‑to‑genital contact; argued duplicative of sexual‑assault counts | Sufficient: penis‑to‑vagina contact qualifies as sexual contact and supported a separate indecency conviction for a distinct act |
| Sufficiency as to breast touching (Count IV) | B.M. testified Tin touched her breasts ‘‘many times,’’ sometimes in bed and at the Riverside apartment after immigration | Timing unclear; argued insufficient to prove contact before she turned 17 | Sufficient: testimony plus residence timing and school records supported that breast touching occurred while B.M. was under 17 |
| Sufficiency as to stepchild status (Count VII) | Testimony that B.M.’s biological father died, mother married Tin, and Tin’s own prior CPS testimony identifying B.M. as his stepdaughter | Contested by Tin | Sufficient: evidence supported jury instruction definition of "stepchild" and that B.M. was Tin’s stepchild |
| Double jeopardy re: indecency count (Count III) | Separate acts (distinct occasions) supported separate convictions | Claimed indecency conviction duplicated sexual‑assault convictions arising from same conduct | No double jeopardy violation: record supports convictions for separate and distinct acts |
Key Cases Cited
- State v. Story, 445 S.W.3d 729 (Tex. Crim. App.) (standard for reviewing evidentiary rulings)
- Dixon v. State, 206 S.W.3d 587 (Tex. Crim. App.) (abuse‑of‑discretion review articulation)
- Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App.) (lay‑opinion testimony; personal knowledge requirement)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App.) (sufficiency review and reasonable inferences)
- Jackson v. Virginia, 443 U.S. 307 (constitutional standard for sufficiency of evidence)
- Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App.) (review of effect of erroneously admitted evidence)
- Maldonado v. State, 461 S.W.3d 144 (Tex. Crim. App.) (separate‑act analysis for multiple punishments)
- Loving v. State, 401 S.W.3d 642 (Tex. Crim. App.) (same)
- Vick v. State, 991 S.W.2d 830 (Tex. Crim. App.) (same)
- Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App.) (same)