Opinion
No. 05-08-01696-CR
Opinion issued May 5, 2010. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 057384-59.
OPINION
Appellant Brandon Dale Day was indicted for the first degree felony offense of aggravated sexual assault of a child, alleged to have occurred on or about the 19th day of February, 2007. On November 4, 2008, appellant pleaded not guilty to the charged offense and was tried before a jury in Grayson County, Texas. After hearing evidence, the jury found appellant guilty. Appellant elected to have the same jury assess his punishment. After hearing additional punishment evidence, the jury assessed appellant's punishment at thirty years' imprisonment in the Texas Department of Criminal Justice-Institutional Division and a $10,000 fine. This appeal ensued. In two points of error, appellant contends the evidence is both legally and factually insufficient to support the judgment against him. Having reviewed the evidence, we conclude it is legally and factually sufficient to support appellant's conviction. Thus, we affirm.
Specifically, the indictment charged appellant intentionally and knowingly caused the sexual organ of D.B., a child who was younger than fourteen years of age and not appellant's spouse, to contact or penetrate appellant's mouth.
Evidence Presented
D.B., the complainant, his brother Landon and sister Kelsey lived with their mother Casey and her fiancee Keith. Keith had an "adopted father figure" named Richard Patroli, whom they all called "Geepaw." Geepaw lived in a one-bedroom apartment with appellant as his roommate. During a year and a half period, Geepaw and appellant volunteered to keep Landon and D.B. many times. They were not paid to "baby-sit," but did so "out of the kindness of their hearts," according to Casey. At times, either Geepaw or appellant would be alone with the boys. Sometimes they would take care of the boys at their apartment and sometimes at Casey's home. Appellant left Grayson County in the early part of December, 2006. Eventually Geepaw moved in with Casey and her children. In February of 2007, after Geepaw had moved into Casey's home, the school notified Casey of an allegation concerning sexual touching or misconduct with her son, Landon. When Casey talked to Landon about the allegation, he denied anything had happened to him. Two days later, however, Landon indicated he had been molested by Geepaw. Casey and Keith immediately asked Geepaw to leave their home, but did not immediately contact the police. After contacting Landon's father the next day, however, the police came to their home and took statements about the allegation. The allegation of sexual misconduct by Geepaw was also discussed with D.B. and Kelsey in the presence of the police. At that time, D. B. made an outcry to Casey about sexual molestation. At the time D. B. made his outcry, the officers were outside in their vehicle preparing to leave. Casey immediately went outside and told the officers about D. B.'s allegation. The officers told Casey to "talk with the detective when the detective got in touch with us." Detective Carney contacted Casey the next day. Casey related D. B.'s outcry to Carney. Casey testified she did not remember Carney's reaction when she told him what D.B. had said. Casey did not know why Carney's report contained nothing about her having told him about D. B. Casey testified that D.B. was interviewed at the Children's Advocacy Center (CAC) sometime in March, but she did not observe the interview, and has not talked to D. B. about the incident since he was interviewed. Detective Robby Carney, a Denison police detective assigned to the criminal investigation division, testified he worked primarily with crimes against children for which he had special training. Carney stated investigations of crimes against children are "one hundred percent completely different versus an adult." Carney stated there was a certain protocol he followed in investigating a crime against children, and explained that he would become involved in an investigation of a crime involving a child either through patrol officers who initially responded to a scene or through Child Protective Service (CPS). He further explained that when patrol officers respond to a scene, they talk to the parents to gather general information, but they do not talk to the child. Carney testified he became involved in this case on February 19, 2007, when two patrol officers answered a call in reference to a sex offense involving Landon. Following protocol, those officers did not talk to the child. The next day, Carney contacted the child's parents and set up a forensic interview at CAC where the child had a forensic interview. During that interview, the child made an outcry against Geepaw. The child's parents are encouraged to act as a parent, not as a counselor, and to leave the counseling to the experts. Carney testified Landon's interview was conducted on February 20. Carney observed the interview. Before the interview, Carney was aware that Geepaw was the suspect. At the time of Landon's interview, Geepaw was "staying with Casey and Keith at the time." However, Carney explained that between February 19 and February 20, Geepaw got "kicked out" of Casey's and Keith's home after they talked to Landon. After Landon's interview, Carney began his investigation into Landon's abuse. Up to that point, Carney had never heard of appellant. When Carney learned there were other children in the home, he contacted CPS, who then set up interviews with the other children. Carney did not observe the interviews with the other children. There were no further outcries made against Geepaw. Carney explained to the jury that a child often lacks a concept of time, and one could not give credence to times and dates stated by children because of their lack of such concepts oftentimes. Carney explained that his knowledge of children's concepts did not come from his training, but rather from his experience as a parent and his observations of children with whom he had worked. Carney testified a videotaped forensic interview was conducted on D. B. on March 1, 2007. Although he did not observe D.B.'s interview, he received a videotape of the interview, as was the standard protocol. Carney was told D. B. had made an outcry against appellant during the interview. Carney knew that appellant had been described by Landon as Geepaw's roommate. Carney then determined that appellant had moved out of state before the investigation began. Because appellant was out of state, Carney never talked to him prior to issuing a warrant for appellant's arrest. After the warrant was issued, Carney contacted law enforcement officials in appellant's location and told them of the outstanding warrant for appellant's arrest. Carney was never informed that appellant was arrested. During cross-examination, Carney testified he reviewed the reports issued by the patrol officers who responded to Casey's home on February 19. Carney determined that appellant was living in McKinney County, North Dakota. Carney testified the patrol officers' reports did not contain anything regarding instructions given to the parents. Carney testified Geepaw was arrested on the charges of abuse against Landon sometime around February 26. Carney interviewed Geepaw before he was arrested, on February 22. Carney had information that "an older gentleman" in a blue car was attempting to pick up a child. Because Carney believed Geepaw had a similar vehicle, he sought a warrant for Geepaw's arrest for the safety of other children. During his interview with Geepaw, Carney learned that Geepaw was a father figure to Keith, Casey's fiancee. He also learned that Geepaw had molested Keith, but there was never a conviction. Keith had not told Casey that Geepaw had also molested him. Carney testified that during D.B.'s interview, D.B. mentioned that Ashley and Faith Robertson were present at the time of the abuse, and one of the girls had seen "what went on." Carney talked to the girls' mother, Laura Jean Montoya. Montoya did not want the girls interviewed because she thought it would upset them, and she had already confronted them and the girls stated no one had touched them in any way. The girls had stayed with appellant and Geepaw on several occasions, but according to Montoya, the girls did not see anything. Geepaw pleaded guilty to the charges involving Landon and received fifteen years' imprisonment. D.B., who was seven years old at trial, testified his mother's name is Casey, his father's name is Ryan, his mother used to have a boyfriend named Keith, and his father had a "girlfriend or wife" named Lacy. His oldest sister Abby is eleven years old, his brother Landon is nine years old, his brother Rylen is seven years old, and his sister Kelsey is four years old. D.B. testified that Geepaw would sometimes babysit him, Geepaw's roommate was named Brandon, and sometimes D.B. stayed with Geepaw and appellant at their house. After stating there were never any other children who stayed with him at Geepaw's and appellant's house, D.B. said sometimes Landon and Kelsey were with him, but he did not know why they were there. D.B. said Ashley was never there. He remembered talking to a girl named "Bobbie." D.B. said that was "a long time ago and a short time ago," and he did not remember why he had to talk to her. Bobbie talked to him about "good touches and bad touches" on his privates. Bobbie told him about all the private parts, and asked him if anyone had ever touched him on his private parts. D.B. said, "[Y]es." When asked who touched him on his private parts, D.B. stated, "Brandon," and identified appellant in open court. When asked if he could tell them about that, D.B. said, "No." When asked "What happened?" He responded "No." D.B. showed the jury where appellant touched him on his privates, stating appellant had touched him on top of his clothes with his hand. D.B. said his brother was in the house at the time. D.B. said that when he talked to "Ms. Bobbie a long time ago, I told her everything that happened" and "he told her the truth." D.B. said he thought he remembered "stuff" better now than then "because we did that tape the other day." When asked, "So, what you did the other day, everything was okay. Right?" D.B. responded, "Yes." D.B. said his turtles were with him and they made him feel better. During cross-examination, D.B. testified he lives with Ryan in Denison, but sometimes he stays with his mother Casey. D.B. did not remember when he had first met appellant or when appellant had moved away from Denison. D.B. did not remember how many times appellant had babysat for him, but he and Landon would go to appellant's house and sometimes they stayed overnight. Appellant never babysat for D.B. at the house where his mother lived with Keith. D.B. remembered that he told his mother and Keith about the time appellant touched him on top of his clothes. He did not remember the date he told them. When asked where he was when it happened, D.B. said, "[I] was just sitting in a chair or on the couch watching TV in his house." When asked if he remembered going to a place and talking to a woman named Bobbie Wieck, D.B. said, "[N]o." D.B. said Ashley and Faith are his cousins, and he still plays with them. When asked when was the last time he saw Ashley and Faith, he said, "[N]ow, that, I can't remember." When asked what they would do when appellant baby-sat him, he replied, "Well, we would just, like, go to places and, like, have some fun. And we would — and in the mornings, we would just stay at — we would just — me and Landon would just stay in the living room watching TV." When asked what Casey and Keith did while appellant was babysitting for him, D.B. said, "At the house having some fun." When asked why he did not tell anyone about appellant touching him on top of his clothes, D.B. said, "Because it didn't — I was kind of scared." He said he was scared to tell his mother or anybody. D.B. said he was the person who told his mother and Keith what happened to him, not Ashley because she "didn't see that." D.B. testified he never saw appellant do "this" to anyone else. During his testimony, D.B. said he did not know a "Ms. Wieck." When asked if he knew who "the other girl Bobbie is," D.B. said, "[Y]es." When asked if he ever met with "the other girl Bobbie" in a room "where you wrote out your names and your family names and stuff," he said "Yes." He remembered telling Bobbie about "this stuff," and told Bobbie about appellant. D.B. said he did not know Bobbie's name was also "Ms. Wieck." During D.B.'s testimony, the following exchange occurred between him and defense counsel:Q. [D.B.], I apologize. Let me ask you just one or two other questions about the other Bobbie. Not this Bobbie.
A. All right.
Q. You know who we're talking about?
A. Yeah.
Q. Okay. And did you — when you talked with this other Bobbie, did you tell her the same things that you're telling these folks about here today?
A. No.
Q. You told her something different?
A. Yes.
Q. Okay. Why did you do that?
A. That, I don't know.
Q. Okay. But you remember telling her something different than what you're telling us happened to you today?
A. Yes.
Q. Okay. I thought, though, you said earlier that this type of thing had only happened to you one time; is that right?
A. Yes.
Q. Okay. Before you went to meet with the other Bobbie and talk with her, did your mama or Keith talk with you about why you were going there?
A. No.
Q. Okay. Did they tell you that you were going there to talk about your privates?
A. No.
Q. Okay. Did they tell you that you were going there to see if someone might have touched you?
A. No.
Q. Okay. Do you remember telling the other Bobbie that this happened actually at their house, not over at Brandon's house?
A. No.
Q. Okay. After you talked to the other Bobbie, did your — did your mother or Keith or anybody ever talk to you anymore about anything that happened?
A. No.
Q. Do you remember how old you were when this supposedly happened to you?
A. I was, maybe, five or six.
Q. Okay. Do you know when your birthday is.
A. Yes.
Q. Tell the jury what your birthday is?
A. August 14th.
Q. Okay. And you were born August 14th of 2001; is that right? Do you remember that?
A. No.
Q. You can't remember that way back? Okay. Let's see. So, this August you just turned seven. Right?
A. Yes.
Q. Okay. And so, are you telling these folks that this one time that you were touched on top of your clothes, you were how old?
A. What does "heard" [sic] mean?
Q. I'm sorry. Do you remember how old you were or how long ago it was that this happened?
A. No.
Q. Okay. You don't remember what your age was. Okay. Do you remember at some point telling the other Bobbie when you were talking to her that you were three years old when this happened?
A. No.
Q. Okay. Do you remember telling her that it happened on a Sunday?
A. No.
Q. Okay. Thank you. . . .During further testimony, D.B. said he did not know what the date was, and reaffirmed that he told the "other Bobbie" something different than he said at trial. When asked what was different, D.B. said, "About all the private parts and I can't remember all the rest." D.B. also restated that he remembered better on the date of trial than he did "back then." Bobbie Wieck testified she was "the other girl Bobbie" that had been referenced during trial. Wieck was the program director at the Grayson County CAC. She primarily conducted forensic interviews, but she oversaw several different programs. The general purpose of CAC was to provide a child-friendly environment for children to tell what has happened to them, if anything, so they are not in a cold environment where they may feel scared or uncomfortable talking about an event. Wieck explained a forensic interview, and set out the protocol followed during the interview process: first they build rapport with the child, they do not ask leading questions or put words into the child's mouth at all. An observation room next door to the interview room is which a multi-disciplinary team that is involved in the case observes the interview. The CAC conducts forensic interviews with children from age two to eighteen. Based upon her training and expertise, Wieck believes a five-year-old child will answer questions differently than a sixteen-year-old child. Wieck conducted Landon's forensic interview and also talked with D.B. When an allegation of abuse is made, all of the children in the home are interviewed. Wieck testified that during an interview, the interviewer is open-minded and asks generalized questions. The child is asked to identify parts of the body and if someone has ever touched them in their private areas. If the answer is yes, the interviewer proceeds in trying to obtain more detailed information. During her interview with D.B., he made an outcry against appellant. Because D.B.'s allegations were against someone other than the person against whom Landon had made an outcry, Wieck was "caught a little off guard." A videotape of Wieck's interview with D.B. was admitted into evidence and played to the jury. The record also contains a transcription of the audio portion of D.B.'s interview. During that interview, D.B. identified various private parts and stated appellant had sucked his "weenie" one time. D.B. had never seen him do that to anyone else. D.B. also stated that Landon told him that Geepaw had touched him [Landon]. Wieck testified that if five-year-old children are familiar with their body parts and are not ashamed of them, they are very open about what they talk about, but a five-year-old child may misidentify body parts occasionally. Wieck testified D.B. was a very friendly, open child, and her perception of D.B.'s testimony about the other children attacking appellant was that they were "horse playing, wrestling around." Wieck testified she believed D.B. was going to be truthful with her when she began the interview. D.B. stated his mother and Keith had talked about it being a bad thing for someone to touch him. D.B. stated the abuse occurred while he was at his mother's and Keith's house in the living room. During the interview, D.B. also said Kelsey, Ashley, Faith, and Landon were there at the time. Based on her training and experience, Wieck believed D.B. was being truthful. D.B. stated appellant had touched him only once, and no one else had ever touched him in an improper way. Wieck thought D.B.'s answer about Ashley was confusing, but she testified D.B. did say Ashley told his mother and Keith about the touching. When asked her opinion about whether D.B. was an imaginative child, Wieck responded that although D.B. was very outgoing, he was very matter of fact when asked about private parts. Vince Sharp, a counselor at CAC and Whitesboro High School, testified he knew D.B. from having worked with him as a counselor about a year before. D.B. began receiving counseling in about three weeks after the forensic interview, and continued counseling sessions until August, 2007. Sharp had reviewed the videotape of D.B.'s interview. According to Sharp, it was difficult to keep D.B. in his chair a lot during sessions because D.B. was hyperactive. Sharp believed D.B. seemed very genuine at all times, and seemed to be "pretty comfortable" being with Sharp. Sharp believed that D.B. also seemed comfortable with Bobbie during the forensic interview. Sharp testified that when the abuse is "short in duration," so is the counseling. Sharp testified that oftentimes children block out "traumatic things" they experience. Sharp believed that D.B. not wanting to remember traumatic things that happened to him in the past was normal and a reflection that counseling had been effective. When questioned about some discrepancies in D.B.'s testimony, Sharp testified that age could explain why a boy would be outspoken about abuse when it initially happens and later try to minimize it because as boys get older, they are more embarrassed about "things like that." Sharp believed it was a positive thing if one forgets the abuse, or puts it aside or refuses to remember it, and if one can work through issues in counseling, it is healthy for one to forget. Appellant called three witnesses, but did not testify during the guilt-innocence phase of the trial. Faith and Ashley Robertson testified they did not see anything or have anything improper happen to them. Casey testified she has three children, Landon, D.B., and Kelsey, and currently lived in Gordonville, Texas. Landon's and D.B.'s father is named Ryan, and Kelsey's father is named Jimmy. At the time of the abuse, Casey lived with Keith, but they are no longer together. Keith's adoptive father Geepaw lived with her, Keith, and her children at the time of Landon's outcry. The school initially contacted Casey about an outcry of abuse by Landon. When she talked with Landon about the allegation, he at first did not state anything had happened to him. A few days later, however, Landon stated he had been abused by Geepaw. Casey testified she did not immediately contact the police because she wanted to have Ryan there. On the following school day when Landon got out of school, she and Ryan contacted the police. The police came to their home and took statements. At the suggestion of the police, Casey talked with D.B. and Kelsey while the police were there. D.B. told Casey "what had happened to him." Casey went outside and told the officers what D.B. had said. The officers, who were already in their patrol car preparing to leave the scene, said she should talk to the detective when he contacted her. Casey testified she did not know why the officers did not make a note of their statement to her in their report. Detective Carney contacted her the next day. Casey testified that from the time she talked to Carney until she took D.B. to the CAC on March 1, she did not talk further to D.B. about the abuse. Casey was not present during the interview and did not observe it. Casey testified she has not discussed the abuse with D.B. since the interview. As soon as she talked with Landon about the abuse allegation, she asked Geepaw to leave her home. Casey testified she has not spoken to appellant since December, 2006, when he left Grayson County. The allegations of abuse surfaced in February, 2007. Casey testified that during the time appellant was in Grayson County, appellant babysat her children both at his apartment and at her home. Geepaw and appellant volunteered to babysit the children numerous times, sometimes together and sometimes alone. Casey testified Faith and Ashley were very close to her children, but neither of them had ever told her about anything happening to Landon or D.B. or any of the children. The jury returned an unanimous guilty verdict for aggravated sexual assault of a child, as charged in the indictment. After hearing additional evidence on punishment, the jury assessed punishment at thirty years' imprisonment.