Opinion
No. 11-16-00269-CR
03-22-2018
CARL WESSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court Taylor County, Texas
Trial Court Cause No. 20465B
MEMORANDUM OPINION
The jury found Carl Wesson guilty of two counts of indecency with a child by contact and one count of indecency with a child by exposure. The jury assessed punishment at confinement for eighteen years and twelve years for the two convictions of indecency with a child by contact and confinement for ten years for the conviction of indecency with a child by exposure. The trial court ordered that the sentences run concurrently. On appeal, Appellant asserts that the State adduced insufficient evidence to support his three convictions. We affirm.
The jury found Appellant not guilty of the offense of continuous sexual abuse of a child. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2017).
I. The Charged Offenses
The grand jury returned a four-count indictment against Appellant for the following offenses:
(1) Continuous sexual abuse of a child, which is a first-degree felony;
(2) Indecency with a child under the age of seventeen by touching the child's genitals with Appellant's hand, which is a second-degree felony;
(3) Indecency with a child under the age of seventeen by touching the child's genitals with Appellant's penis, which is a second-degree felony;
(4) Indecency with a child under the age of seventeen by exposing Appellant's genitals knowing the child was present, which is a third-degree felony.
See id. § 21.02.
See id. § 21.11 (a)(1)(d).
See id.
See id. § 21.11 (a)(2), (d).
A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years of age, the person engages in sexual contact with the child or causes the child to engage in sexual contact. PENAL § 21.11(a)(1). A person commits the offense of indecency with a child by exposure if, with a child younger than seventeen years of age, the person, with intent to arouse or gratify the sexual desire of any person, exposes the person's anus or any part of the person's genitals, knowing the child is present. Id. § 21.11(a)(2)(A).
II. Evidence at Trial
Appellant began a romantic relationship with the victim's mother, R.J. Three months later, Appellant moved in with R.J., her daughter K.J., and her son T.J. About a year later, in 2010, K.J., who was eleven years old at the time, made an outcry of sexual abuse against Appellant. R.J. testified that K.J. was unable to give dates, and when asked if K.J. wanted to go see the doctor, K.J. responded, "No. I'm sorry. I just wanted my daddy to come back." R.J. said that she had no reason to believe K.J. R.J. did not take K.J. to the doctor, and R.J. continued her relationship with Appellant.
A. After the second complaint by K.J., police and CPS investigate her allegations.
In 2011, K.J. took some of her belongings and ran away from home. The police stopped her approximately three blocks from her house and questioned her. At that time, K.J. made a second allegation against Appellant. The police told R.J. that K.J. had accused Appellant of inappropriate sexual contact. R.J. took K.J. to the Child Advocacy Center. There, K.J. explained in a forensic interview that Appellant had touched her privates with his hands when he slid his hand through the bottom of her shorts and rubbed the outside of her underwear. K.J. also explained that she would sit on Appellant's lap and he would touch her thigh and begin to slide his hand toward her private area. On a diagram, K.J. identified the breast, anus, and vagina as private areas.
Angela Derrick, a supervisor, caseworker, and investigator with Child Protective Services, initially investigated K.J.'s complaints. Her investigation continued into 2011 when K.J. completed her first forensic interview. Derrick noted that K.J.'s family members were not concerned about the allegations because K.J. had changed her story and did not act like a sexually abused child. Derrick explained that CPS had been unable to determine if K.J.'s allegations were true, but it did not rule out that sexual abuse may have occurred. Detective Frank Shoemaker, of the Abilene Police Department, was assigned to the Crimes Against Children Unit. He conceded that, after his investigation in 2011, he did not forward the case to the D.A.'s office because he thought that K.J.'s statements were inconsistent.
R.J. took the matter up with Appellant, and Appellant told her, "[K.J.] must have been just complaining about -- I mean, needing her father back again." Later, R.J. married Appellant and opened a business with him. By the time that Appellant, his daughter, R.J., and her children moved into a new home, K.J. had recanted her allegations against Appellant. K.J. testified that she recanted because Appellant made her mother happy, which was all she wanted for her mother.
R.J. testified that her divorce was pending at the time of trial.
B. K.J. makes another outcry in August 2012.
After Appellant, R.J., and the children moved into the new house, Appellant began molesting K.J. again. Appellant would touch K.J. in inappropriate ways and places while R.J. was at work. Appellant would touch K.J.'s vagina with his fingers and penis, and he would touch her bottom or anus with his hands. K.J. would lay on her right side in bed, and she would wake up to Appellant touching her. On two occasions, Appellant lifted K.J.'s nightgown, and she woke up to Appellant on top of her with his penis touching her vagina. K.J. would tell Appellant to get off her, and Appellant would angrily walk into the hallway and say, "I didn't do anything wrong. [You] don't know what you're talking about."
R.J. became suspicious after she found Appellant asleep in K.J.'s bed clad only in his underwear and a T-shirt. She also found a pair of K.J.'s panties in R.J.'s and Appellant's bedroom, where the children were not allowed to go. When R.J. asked K.J. if Appellant had been touching her, K.J. cried and said "yes." K.J. told her mother that Appellant had put his hands down her pants and rubbed her vagina, that he had touched her bottom, that he had rubbed his private part against her, and that he had placed her hand on his private part.
K.J. also explained that Appellant would put her hand in his pants and "move it up and down." Appellant also would put his hand in her pants, rub her hard on her "middle part," and "put his fingers in her." K.J. said that it "would always hurt" and that she would tell him to stop but he would not. R.J. asked her if it had been happening "the whole time," and K.J. said "yeah." R.J. still did not call the police at that time because Appellant was "very manipulative" and because no one had believed K.J. the first two times. R.J. wanted to have "more proof," and she did not want it to just be "[Appellant's] word against [K.J.'s]."
C. R.J. devised a plan.
R.J. devised a plan to document Appellant's sexual abuse of K.J. R.J. planned to park her car down the street and around the corner so that Appellant could not see it. She cleaned out the closet in K.J.'s bedroom and put a chair in it to sit on; she planned to film Appellant in the act of abuse. On the night the plan came to fruition, R.J. parked her car down the street, to make it appear as though she was at work, and hid in K.J.'s closet. R.J. hid in the closet for several hours while Appellant and K.J. ate and watched TV. Eventually, K.J. went to bed, got under the cover, and fell asleep. Appellant took off his pants about fifteen minutes later and sat on K.J.'s bed watching TV for about thirty more minutes. K.J. had left her lamp "on" so her mother could obtain video proof; however, Appellant turned off the lamp. Appellant got into K.J.'s bed clad in a T-shirt and boxer shorts.
Appellant did not do anything for about thirty minutes. Then R.J. saw movement—as if Appellant "was stroking himself." Appellant moved closer to K.J. R.J. jumped out of the closet when she saw Appellant's left hand move underneath the cover in front of K.J. R.J. pulled off the cover, turned on the light, and saw Appellant's left arm around K.J. while his right hand held his erect penis. K.J. awoke when her mother slammed the closet door open and yelled, "[W]hat the 'F' do you think you're doing?" Appellant "tackled" R.J. and pushed her up against the wall. K.J. ran out of the bedroom and locked herself in the downstairs bathroom. R.J. made Appellant leave the house.
D. The aftermath.
Appellant returned to the house and, on his hands and knees, begged R.J. and told her that he knew he was wrong for what he did, that he loved R.J., and that he was sorry for what he did. Appellant called K.J. into the room to tell her that he was sorry and asked K.J.'s permission to stay. Appellant left again and returned the next day for his belongings. When Appellant refused to leave, R.J. and K.J. went to a McDonald's down the street, and R.J. called the police. The State asked R.J. why she waited more than two days to call the police, and she responded that "[she] really [did not] know," that she was "devastated," and that K.J. was "crushed." On cross-examination, R.J. testified that she had bipolar disorder and that it manifested itself with a "lot of depression." She also explained that, for approximately a year prior to reporting Appellant to the police, she had not engaged in sexual relations with Appellant.
E. K.J. and her mother report the sexual abuse to police, who start an investigation.
Detective Tim Pipes is an eighteen-year veteran of the Abilene Police Department. On Friday, August 10, 2012, Detective Pipes received a call to meet some individuals at a McDonald's on Buffalo Gap Road about alleged sexual abuse. Detective Pipes met with K.J., who was thirteen years old at the time, along with her mother. They alleged that K.J. was a victim of ongoing inappropriate sexual contact by Appellant. R.J. described the closet situation and how "[she] came storming out of the closet and [she] ripped the sheet back and caught him with his penis in his hand." R.J. said that she "didn't see him touching her, but then again he was tilted to the side so he could have been."
Detective Pipes asked them to go to the Law Enforcement Center, so they could be interviewed by a Crimes Against Persons detective. In that interview, K.J. described how Appellant had touched her with his penis; how Appellant had touched her middle part with his finger and said, "You're so wet"; how Appellant had touched her bottom; and how she had woken up to Appellant using her hand to masturbate him. K.J. also described another instance where her grandmother, now deceased, had witnessed Appellant lift K.J.'s nightgown and pull down her panties while "his penis [was] out." K.J. said Appellant always touched her middle part with his penis or hand. When K.J. was in her bed, Appellant would touch either her butt or her middle part with either his hand or penis. Appellant's penis has touched K.J.'s middle part under her clothes.
K.J. has only felt Appellant's penis about three times. When asked what Appellant's penis felt like, K.J. responded, "Just that it has a lot of veins in it" and that "it had little bumps in it." One time, K.J. woke up to Appellant forcing her to rub his penis "up and down."
F. Appellant challenges the State's case.
Appellant's daughter, T.W., who lived with the family for a time, testified that K.J. had a reputation for not telling the truth. She also said that it was not "unusual" for Appellant to watch television in another person's room or to wear a T-shirt and boxer shorts around the house. She never saw K.J. behave in a way that made her think that K.J. was afraid of Appellant.
Appellant told police that he had arthritis in his hip, that he had been going to therapy and had been given exercises to loosen his hip when it tightens up, and that he was doing these exercises when R.J. came out of the closet and accused him. Appellant's counsel called Carye Aslin, a physical therapist and the clinical director at D1 Elite Physical Therapy in Abilene. Aslin testified that Appellant had been a patient since July 2012 for right hip pain due to "degenerative joint disease." She described the exercises that Appellant had been prescribed as part of his therapy to alleviate his hip pain.
III. Analysis
Appellant asserts two sufficiency-of-the evidence issues. We review the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under this standard, we review all of the evidence in the light most favorable to the jury's verdict and decide whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We also measure the sufficiency of the evidence by the elements of the offense as defined in a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A 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 liability, and adequately describes the particular offense for which the defendant was tried." Id.
A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years of age, the person engages in sexual contact with the child or causes the child to engage in sexual contact. PENAL § 21.11(a)(1). A person commits the offense of indecency with a child by exposure if, with a child younger than seventeen years of age, the person, with intent to arouse or gratify the sexual desire of any person, exposes the person's anus or any part of the person's genitals, knowing the child is present. Id. § 21.11(a)(1)(A).
"Sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; orId. § 21.11(c). Sexual contact is sufficient to support a conviction for indecency with a child if the child remains clothed. See id. § 21.11(c)(1) (defining "sexual contact" to include touching through clothing); see also Resnick v. State, 574 S.W.2d 558, 560 (Tex. Crim. App. [Panel Op.] 1978); Johnson v. State, No. 01-02-00861-CR, 2003 WL 21666109, at *5 (Tex. App.—Houston [1st Dist.] July 17, 2003, no pet.) (mem. op., not designated for publication); Guia v. State, 723 S.W.2d 763, 766 (Tex. App.—Dallas 1986, pet. ref'd). Although touching through a layer of clothing will suffice to support a conviction for indecency with a child under these precedents, the evidence must nevertheless establish a "touching" of "the anus, breast, or any part of the genitals of the child." PENAL § 21.11(c)(1).
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
"The offense of indecency with a child requires proof of the accused's intent to engage in the proscribed contact, rather than intent to bring about a particular result." Scott v. State, 202 S.W.3d 405, 407 (Tex. App.—Texarkana 2006, pet. ref'd) (citing Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.—Corpus Christi 2000, pet. ref'd)). A jury may infer the defendant's intent from his remarks and conduct as well as all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). An oral expression is not required. Cruz v. State, No. 11-05-00112-CR, 2006 WL 572002, at *3 (Tex. App.—Eastland Mar. 9, 2006, no pet.) (not designated for publication). A jury also may infer, from conduct alone, a defendant's intent to arouse or gratify one's sexual desire. Scott, 202 S.W.3d at 408 (citing McKenzie, 617 S.W.2d at 216).
The State adduced evidence that Appellant made indecent contact with K.J. by touching her vagina with his hands and his penis. K.J. said that, prior to her mother finally believing her, Appellant "was sleeping in my bedroom like twice a week." K.J. stated, "[Appellant] usually sticks his finger up my pants and starts rubbing on me . . . my middle part." Appellant had touched K.J.'s "middle part" and "butt" with his penis. K.J. said, "[Appellant] was just touching me with his penis, and it was just weird and then I started crying." Appellant touched K.J.'s vagina with his fingers and penis, both under and over her clothes. This happened on several occasions. K.J. explained that, one time when Appellant touched her middle part with his finger, he commented, "You're so wet."
K.J. would wake up with Appellant's hand down her pants or sometimes with her hand touching his penis. In addition, K.J. also woke up to Appellant on top of her. K.J. also said that her grandmother, who is now deceased, walked in one time and saw Appellant on top of K.J. He had pulled her panties down, and he had his penis out.
After a review of the record, we note that the jury apparently chose to believe K.J.'s testimony about Appellant's sexual abuse. The factfinder may believe all, some, or none of a witness's testimony because the factfinder is the sole judge of the weight and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref'd). And, the testimony of the child alone is sufficient to support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2017); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Proctor v. State, 356 S.W.3d 681, 685 (Tex. App.—Eastland 2011, pet. ref'd). We defer to the trier of the fact's resolution of any conflicting inferences raised in the evidence and presume that the trier of fact resolved such conflicts in favor of the verdict. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 894.
In a related argument, Appellant contends that, because the State did not elect which of the multiple alleged acts of sexual abuse it relied upon to prove the offenses, the trial court instructed the jury that the alleged offenses had to take place on August 8. "First, time is not a material element of an offense (at least, not usually)." Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998) (citing O'Connell v. State, 18 Tex. 343, 366 (1857)). Second, the primary purpose of providing a date in the indictment is not to notify the accused of the date of the offense but, rather, to show that the prosecution is not barred by the statute of limitations. Id. (citing Presley v. State, 131 S.W. 332, 333 (Tex. Crim. App. 1910). "Third, it may be impossible for the State to know precisely, or even approximately, when the charged offense occurred." Id. Thus, the "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).
In her 2012 interview, K.J. said that, recently, every time R.J. was at work, Appellant touched her while she slept. The indictment alleged that Appellant's acts of sexual abuse occurred on or about August 8, 2012. K.J. and R.J. spoke to Detective Pipes on August 10, 2012. At trial, K.J. explained that Appellant touched her vagina with his fingers and penis, both under and over her clothes. She said that this happened on several occasions. K.J. also testified that she would wake up with Appellant's hand down her pants or, sometimes, with her hand touching his penis. In addition, K.J. had woken up to Appellant on top of her. We hold that the State adduced sufficient evidence for the jury to convict Appellant of the charged offenses.
In another sufficiency argument, Appellant contends that, because the jury did not convict him of continuous sexual abuse of a child, he cannot be convicted of indecency with a child by contact. We disagree. The offense of continuous sexual abuse of a child requires proof of two or more acts of sexual abuse during a period of thirty days or more. PENAL § 21.02(b)(1), (2). If the State failed to adduce sufficient evidence of the requisite time period when the acts of sexual abuse occurred, the jury was free to determine that the State had not proved its case for that offense. However, the jury also was free to determine, from K.J.'s testimony, that Appellant had committed at least two separate acts of indecency by contact and another offense of indecency by exposure. K.J. testified that Appellant had touched her vagina with his fingers and his penis. She also testified that he had forced her to grab his penis and move her hand up and down. Viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant engaged in sexual contact with K.J. when he touched her vagina with his fingers and with his penis and forced her to touch his penis. The jury could have found beyond a reasonable doubt that he committed the offense of indecency by exposure when he exposed his penis in her presence. We overrule Appellant's sufficiency issues.
IV. This Court's Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE March 22, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.