Opinion
05-21-00922-CR 05-21-00924-CR
06-14-2023
KYLE LANDON TURNER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b).
On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 18-10991-86-F
Before Chief Justice Burns, Justice Partida-Kipness, and Justice Breedlove
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS JUSTICE
Appellant Kyle Landon Turner appeals his convictions for continuous sexual abuse of a child and online solicitation of a minor. In five issues, Turner states the evidence was insufficient to support his conviction for continuous sexual abuse of a child, he suffered egregious harm from the jury charge submitted, the trial court erred by admitting evidence, double jeopardy was violated by his two convictions, and the judgment needs to be reformed. We affirm as modified.
BACKGROUND
Turner was first investigated and charged with online solicitation of a minor regarding his interactions with Otis. Otis's parents discovered inappropriate messages and requests for sexual photograph from Turner in Otis's Snapchat app and on his text messages. They also found marijuana in Otis's possession that Turner had left for him. Otis's parents notified police. At trial, Otis testified he met Turner in 2018 when he was 14 years old. Otis met Turner through Mark, one of the complaining witnesses in the continuous sexual abuse case. Mark and Otis were earning money mowing lawns in the summer, and Turner was one of their clients. Otis testified that Turner invited the boys to go swimming after they finished mowing lawns and gave them beers. They later switched to drinking liquor and then moonshine. Eventually the three played a game of "Truth or Dare." Otis explained that Turner told Mark to get a shot glass, but he noticed Mark looked uncomfortable. Turner then dared Mark to "streak" naked down the street. After that encounter, Otis and Turner exchanged Snapchat names and would discuss truck and motorcycle repairs. But as they communicated more, Otis testified Turner would request pictures of his genitalia but Otis never complied. Turner would send "selfies," naked videos from the internet, and pictures with captions such as, "I love you, sweetie pie" to Otis. Otis explained Turner's pictures would make him feel uncomfortable, but he played along because he felt he had to cooperate or Turner would not help him fix his motorcycle and car. Otis said in October 2018, Turner offered to fix his motorcycle for his birthday and told Otis he had a "surprise" for him in the freezer. When Otis dropped his motorcycle off at Turner's home, Turner had left him a bag of marijuana and mushrooms. Otis did not know what Turner had left and asked his sister. She asked their parents, and that is when Otis's parents searched the bag Turner had left for Otis and found the marijuana and mushrooms. After finding the drugs, Otis's parents searched his phone, saw the messages from Turner, and called police.
The three complaining witnesses were given pseudonyms at trial to protect their identity. To protect the identity of the minor complainants, we will use the same pseudonyms used during trial. See Tex. R. App. P. 9.8(b)(2).
Mark testified he first met Turner at his school when Turner's mother worked there. Later, Turner moved a few houses down the street from Mark. When Mark was around eleven or twelve years old, he went hunting with his father and brother, his best friend, Quinn, and Turner. On that hunting trip, Turner talked to Quinn and Mark about Playboy and offered them dipping tobacco after Mark's father and brother had gone to bed. Mark explained he thought it was "cool" an adult was talking to him like a friend. On the same hunting trip, Turner gave Mark and Quinn condoms, opened Pornhub on his phone, and dared them to masturbate in the bathroom. Mark stated he did not know what to do, so he went into the bathroom and just threw the condom away. Mark explained he liked hanging out with Turner because he felt his parents were strict and Turner would let them cuss, use tobacco, and drink alcohol.
When Mark was in seventh grade, Turner's truth or dare games started to involve more sexual dares. He said one of the first sexual dares was for Mark to watch pornography. Turner next dared him to masturbate, but while Mark was masturbating, Turner approached him and gave him a "blow job" and "put his fingers" in Mark's butt. Mark explained he tried to move away from Turner, but Turner pulled him closer and said it was "gonna be fine." Only Mark and Turner were present at Turner's house at that time. Mark stated he believed Turner performed oral sex on him at least three or four other times while he was in seventh and eighth grade. During one of those instances, Mark testified that he was intoxicated and fell down. As Turner performed oral sex on him, Mark stated he realized Turner was truly a pedophile.
Besides the incidents of oral sex between Turner and Mark, Turner also dared Mark to perform oral sex on Quinn on other occasions. Turner would act like the incidents between them were "normal." As the boys got older, Mark explained he realized that Turner was using them instead of being a friend. Mark later went to therapy because his friends and family told him he had "anger issues" and he later realized he was concerned that people would think he "was gay" because of what occurred with Turner.
Quinn, the other complaining witness, testified that he met Turner in 2016 on a hunting trip when he was twelve years old. Quinn stated he was thirteen the first time Turner assaulted him and it continued until he was fourteen. Quinn estimated he was assaulted between twelve and fifteen times. He said Turner let them cuss and gave them dipping tobacco and provided them alcohol in 2017 when he was thirteen. Quinn explained Turner tried to grab his testicles over his clothes every time he saw Turner a "few months" after the hunting trip. Quinn stated he always went to Turner's house with Mark. Turner would make sexual dares during their games, and the sexual incidents started happening in 2017 when he was thirteen. Turner dared Quinn to perform oral sex on either he or Mark, and Turner also performed oral sex on Quinn on multiple occasions.
Quinn stated he also chatted with Turner on Snapchat and sent him pictures of his penis when he was thirteen to fourteen years old. Turner told Quinn he was planning a hunting trip for just himself, Quinn, and Mark. Turner then texted Quinn that he had "almost gone all the way with Mark," and Quinn said Turner's statement "opened" his eyes to the situation with Turner. Although Mark had first questioned if Turner was a sexual predator, Quinn saw Turner as a friend and did not see initially see him as a predator. Turner also told the boys not to tell anyone about what occurred, but Quinn was concerned they would get in trouble for drinking alcohol and using tobacco.
The jury convicted Turner of continuous sexual abuse of a child and online solicitation of a child and sentenced him to forty and ten years' imprisonment respectively. This appeal followed.
ANALYSIS
In four issues, Turner contends we should reverse his conviction because the evidence was insufficient to support his conviction for continuous sexual abuse of a child, he suffered egregious harm from the jury charge submitted, the trial court erred by admitting evidence, and double jeopardy was violated by his two convictions. Turner also argues the judgment needs to be reformed. We will address his substantive complaints first.
A. Sufficiency of the Evidence
Turner first challenges the sufficiency of his conviction for continuous sexual abuse of a child.
Turner does not challenge the sufficiency of his conviction for online solicitation of a minor.
We review a sufficiency challenge by considering all of the evidence in the light most favorable to the verdict and determine, whether, based on the evidence and reasonable inferences therefrom, a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We defer to the fact finder's credibility and weight determinations because the fact finder is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The fact finder can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). "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." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liabilities, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements "as modified by the indictment." Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). A hypothetically correct jury charge for continuous sexual abuse of a child requires the State to prove Turner:
(1) during a period that is 30 or more days in duration, committed two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, Turner was 17 years of age or older and the victim is:
(A) a child younger than 14 years of age, regardless of whether Turner knew the age of the victim at the time of the offense.Tex. Penal Code § 21.02.
Here, the State alleged (1) Turner engaged in sexual contact with Mark by touching his genitals, causing Mark to touch Turner's genitals, or causing Mark to touch Quinn's genitals; (2) penetration of Mark's anus by Turner's finger, Mark's finger, or an alcohol soaked tampon; (3) penetration of Mark's mouth by Turner's sexual organ; (4) intentionally and knowingly causing Mark's mouth to contact Turner and Quinn's sexual organ; and (5) intentionally and knowingly inducing Mark to engage in masturbation and knowing the character and content of the sexual conduct or sexual performance. Although the exact dates of abuse need not be proven, the offense requires proof that two or more acts of sexual abuse occurred during a period of thirty days or more. Montero v. State, No. 05-18-01281-CR, 2019 WL 3229170, at *1 (Tex. App.-Dallas July 18, 2019, no pet.) (mem. op., not designated for publication). "The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child." Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.) (citing article 38.07(a) of the Texas Code of Criminal Procedure); see Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (stating child victim testimony is sufficient to support conviction for sexual assault of a child). Additionally, child victims are not required to be specific about the dates the abuse occurred. Montero, 2019 WL 3229170, at *2.
We conclude there is ample evidence to support the verdict. The jury heard testimony from both Mark and Quinn during the trial. Both boys offered detailed testimony that Turner committed multiple instances of sexual assault against them when they were between twelve and fourteen years of age. It was established during trial that Turner was in his thirties during that time. Although any abuse that occurred after the boys turned fourteen does not fall under the continuous sexual abuse statute, both boys testified that most of the abuse occurred when they were in the seventh grade and thirteen years of age. The State was required to show two or more incidents of abuse more than thirty days apart for either victim. See Tex. Penal Code § 21.02. The jury could easily have believed both Mark and Quinn were abused by Turner when they were twelve or thirteen years of age. The jury as the fact finder is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Winfrey, 393 S.W.3d at 768. We defer to their finding and determine the evidence was sufficient to prove Turner committed continuous sexual assault of a child as alleged in the indictment. Turner's first issue is overruled.
B. Double Jeopardy
In his next issue, Turner alleges his double jeopardy rights were violated. The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the states through the Fourteenth Amendment, incorporates three protections: (1) protection against a second prosecution for the "same" offense following an acquittal; (2) protection against a second prosecution for the "same" offense following a conviction; and (3) protection against multiple punishments for the "same" offense. Ramos v. State, 636 S.W.3d 646, 651 (Tex. Crim. App. 2021). To determine "sameness" for double-jeopardy analysis, the traditional starting point is the "Blockburger test." Blockburger v. United States, 284 U.S. 299, 304 (1932). Blockburger established that two separately-defined statutory offenses are presumed not to be the same so long as each requires proof of an elemental fact that the other does not. Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008) (citing Blockburger, 284 U.S. at 304). When comparing elements of differing statutory provisions, courts must not only examine the statutory elements in the abstract, but also compare the offenses as pleaded. Id.
Turner was not given multiple punishments for the same offense. "A multiple-punishments double-jeopardy violation may arise either in the context of lesser-included offenses (when the same conduct is punished under both a greater and a lesser-included statutory offense) or when the same criminal act is punished under two distinct statutory provisions, but the legislature intended only one punishment." Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014). Continuous sexual abuse of a child and online solicitation of a minor are not lesser offenses of the other. See Tex. Penal Code §§ 21.02, 33.021(b). The facts required to prove either offense are not the same as the other. Therefore, no double jeopardy violation occurred.
Turner also argues his double jeopardy rights were violated under the "doctrine of subsumed acts." However, the incidents of abuse alleged in the continuous sexual abuse of a child charge did not occur out of a "single criminal act" where offenses would merge together. Aekins, 447 S.W.3d at 275. The complaining witnesses testified the acts occurred over the course of at least two years. Therefore, the jury could have reasonably convicted Turner of two or more separate acts that did not occur out of a single criminal act. Id. No double jeopardy violation occurred. We overrule Turner's double jeopardy issue.
C. Jury Charge Error
Turner next argues the jury charge was erroneous and caused him egregious harm. He states that the charge used the full statutory language for indecency with a child and stated "a child younger than 17 years of age," when the evidence had to show that Mark was under the age of fourteen when Turner assaulted him.
The purpose of the trial court's jury charge is to instruct the jurors on the law applicable to the case. See Tex. Code Crim. Proc. art. 36.14. The charge is the instrument with which the jury convicts; therefore, it must be an accurate statement of the law and set out the essential elements of the offense. Fields v. State, -- S.W.3d--, --, No. 01-20-00280-CR, 2022 WL 3268525, at *3 (Tex. App.- Houston [1st Dist.] Aug. 11, 2022, pet. ref'd). A jury charge that improperly states the law or the elements of an offense is erroneous. Id. Abstract paragraphs "serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge," and application paragraphs apply the "pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations." Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
All alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Appellate review of purported error in a jury charge involves a two-step process. Id. First, we determine whether the jury instructions are erroneous. Id. Second, if error occurred, then an appellate court must analyze the error for harm. Id. The issue of error preservation is not relevant until harm is assessed because the degree of harm required for reversal depends on whether error was preserved or not. Id.
The failure to preserve a jury-charge error is not a bar to appellate review but rather establishes the degree of harm necessary for reversal. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Neither the State nor the appellant bears the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Harm is assessed in light of the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence, the parties' arguments, and all other relevant information in the record. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022); Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
If the "defendant never presents a proposed jury instruction (or fails to object to the lack of one), any potential error in the charge is reviewed only for 'egregious harm' under Almanza." Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g)). As in this case, when an "appellant d[oes] not object to the charge, the error does not result in reversal 'unless it was so egregious and created such harm that appellant was denied a fair trial.'" Warner, 245 S.W.3d at 461 (quoting Almanza, 686 S.W.2d at 171). "Errors that result in egregious harm are those that affect the 'very basis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Id. at 461-62 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish egregious harm, the "appellant must have suffered actual, rather than theoretical, harm." Id. at 461.
Turner did not object to the charge of the court, so egregious harm must be found in order to sustain his issue. When explaining the different underlying offenses the State alleged to prove continuous sexual assault of a child, the jury charge contained language describing indecency with a child. Indecency with a child states the victim could be a "child younger than 17 years of age." However, prior to that instruction, in the abstract and application portion of the charge, the jury instructions specifically stated continuous sexual abuse of a child requires the child to be "younger than 14 years of age" at the time the offense was committed. Additionally, the application paragraph instructed the jury that they were required to find beyond a reasonable doubt that Mark was "a child younger than fourteen years of age." See Perez v. State, No. 05-12-00377-CR, 2013 WL 4568296, at *9 (Tex. App.-Dallas Aug. 26, 2013, pet. ref'd) (mem. op.). It is a longstanding rule that the State is not required to prove that an offense was committed on the date alleged in the indictment (whether or not the words "on or about" are used) but may prove that the offense was committed on any date prior to the return of the indictment and within the period of limitations. Martin v. State, 335 S.W.3d 867, 873 (Tex. App. 2011). Therefore, when read as a whole, the charge properly restricted the sexual abuse to that which occurred prior to Mark's fourteenth birthday.
We must assume that the jurors read and understood the charge as a whole, and that they took the challenged instruction into account when reading the application paragraph. Martin, 335 S.W.3d at 873. Here, like in Martin, the court's charge was adequate to assure that the jury did not convict Turner of continuous sexual assault based on conduct following Mark's fourteenth birthday.
Even if the jury charge was erroneous, Turner was not egregiously harmed by any error. To determine if charge error is egregious, we review the (1) entirety of the jury charge; (2) state of the evidence; (3) arguments of counsel; and (4) other relevant information revealed by the trial record. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Here, the charge instructed the jury that the abuse for continuous sexual assault must have occurred before Mark's fourteenth birthday. The jury heard testimony from both Mark and Quinn regarding their ages when Turner first began abusing them, the grade of school they were in, and the fact the incidents occurred multiple times while they were under the age of fourteen. In the State's closing argument, the prosecutor spoke about the different types of abuse alleged but directed the jury's attention to incidents that occurred before the complainants turned fourteen. The State also explained to the jury it could use events that occurred when Mark was fourteen to "help assess whether or not [Mark] was abused whenever he was 13 years old or younger, talking sixth and seventh grade" if they believed those events occurred beyond a reasonable doubt. Additionally, the jury heard Otis's testimony regarding Turner's behavior towards him. All combined, Turner cannot show he suffered actual egregious harm based on the jury charge. We overrule Turner's third issue.
D. Admission of Evidence
In his fourth issue, Turner argues the testimony of the SANE nurse and State's exhibit 51 were improperly admitted and affected his substantial rights.
During trial, Turner objected to the forensic medical report, State's exhibit 51. The trial court sustained the objection regarding statements made by Mark to the SANE nurse, and the State redacted that portion of the SANE exam report. The trial court overruled Turner's objections regarding the personal observations of the SANE nurse and allowed her to testify regarding her notes and observations. Turner did not specifically object to SANE nurse Danielle Sanchez's testimony or the admission of the redacted version of State's exhibit 51.
The State argues, and we agree, that Turner did not preserve the error he now raises on appeal. In order to preserve a claim on appeal, Turner must have objected in the trial court on the same ground he now raises on appeal and gain a ruling on that objection. Tex.R.App.P. 33.1(a); Tex. R. Evid. 103(a); Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998). When a trial objection does not comport with the issue raised on appeal, then nothing is preserved for review. Tex.R.App.P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Because Turner did not object to Sanchez's testimony or to the admission of the redacted State's exhibit 51 during trial, he has not preserved any issue for appellate review. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.-Texarkana 2005, pet. ref'd). His fourth issue is overruled.
E. Modification of the Judgment
By his fifth issue, Turner requests that the judgment be modified to delete multiple court costs assessed. The State agrees that article 102.073 of the Texas Code of Criminal Procedure applies.
Article 102.073 of the code of criminal procedure states that in a single criminal action where a defendant is convicted of two or more offenses, the trial court may assess court costs and fees only once against the defendant. TEX. CODE CRIM. PROC. art. 102.073. "For the purposes of this rule, a person convicted of two or more offenses in the same trial or plea proceeding is convicted of those offenses in a "single criminal action." Shuler v. State, 650 S.W.3d 683, 690 (Tex. App.- Dallas 2022, no pet.). Court costs should be determined based on the highest category of offense of the convictions. Tex. Code Crim. Proc. art. 102.073(b).
We have the power to modify a judgment to speak the truth when we have the necessary information to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (en banc). When there is a conflict between the oral pronouncement of a sentence and the written judgment, the oral pronouncement controls. Shuler, 650 S.W.3d at 686 (citing Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)). When the oral pronouncement and the written judgment conflict, the remedy is to reform the judgment. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).
Turner was assessed two court costs of $487.00, one for each of his convictions. His court costs from his online solicitation of a minor case, No. 05-21-00924-CR, should be deleted and the judgment reformed to reflect $0 court costs. Turner's fifth issue is sustained.
CONCLUSION
Under this record, we conclude the evidence was sufficient to support Turner's conviction, there was no double jeopardy violation, any jury charge error was harmless, and the trial court did not err in its admission of evidence. We further find the judgment should be modified as requested by Turner. Accordingly, we overrule Turner's first four issues, sustain his fifth issue, and affirm the judgment as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered
Chief Justice Burns and Justice Breedlove participating.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
delete the assessed court costs
As REFORMED, the judgment is AFFIRMED.
Judgment entered .