Opinion
14-23-00182-CR
12-19-2024
RICKY RICHARD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1669627
Panel consists of Justices Spain, Poissant, and Wilson.
OPINION
Charles A. Spain Justice
A jury convicted appellant Ricky Richard of the first-degree felony of continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b), (h). Following an agreement reached with the State, the trial court assessed punishment at imprisonment for twenty-five years and a $100.00 fine. Tex. Code Crim. Proc. Ann. art. 102.0186(a) (imposing $100 fine for certain child sexual assault offenses). In a single issue, appellant challenges the sufficiency of the evidence, arguing that the State did not prove beyond a reasonable doubt that the two acts of sexual abuse alleged to have occurred were committed at least thirty days apart. We affirm the judgment of the trial court as challenged on appeal.
I. Background
In 2020, appellant was indicted for continuous sexual assault of a young child, D.A., beginning in November 2018 and continuing through June 2019. During the relevant time period, appellant was dating D.A.'s biological grandmother. The trial court certified appellant's notice of appeal, noting that appellant had "waived the right to appeal as to punishment only."
II. Argument
In his sole issue, appellant contends that the evidence is insufficient to sustain his conviction for continuous sexual assault of a child. Specifically, appellant argues that the State did not prove that at least two acts of sexual abuse specified in the indictment occurred over a period of at least thirty days.
A. Standard of review
In determining whether the evidence is sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that 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); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (jury must find every constituent element of charged offense). We may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the jury. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury's resolution of any conflicting inferences from the evidence and presume that it resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 16).
We measure sufficiency to support a conviction by comparing the evidence presented at trial 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). A hypothetically correct jury charge reflects the governing law, the charging instrument, the State's burden of proof and theories of liability, and an adequate description of the offense for the particular case. Id. In conducting a sufficiency review, we must consider the cumulative force of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
B. Applicable law
To establish continuous sexual abuse of a child, the State must prove the following elements: (1) the defendant "commit[ted] two or more acts of sexual abuse" (2) "during a period that is 30 or more days in duration," and (3) "at the time of the commission of each of the acts of sexual abuse, the [defendant was] 17 years of age or older and the victim [was] a child younger than 14 years of age." Tex. Penal Code Ann. § 21.02(b). "Acts of sexual abuse" are listed in the statute and, as relevant here, include indecency with a child and aggravated sexual assault. Tex. Penal Code Ann. § 21.02(c).
A person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B). A person commits indecency with a child if he engages in sexual contact with the child or causes the child to engage in sexual contact. Tex. Penal Code Ann. § 21.11(a)(1). Sexual contact is defined to include, as relevant here, any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1).
C. Analysis
Appellant argues that the State failed to establish that the two acts alleged in the indictment took place during a period that was thirty or more days in duration.
The indictment alleged:
on or about November 1, 2018 continuing through June 23, 2019, [appellant] did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of sexual abuse against a child younger than fourteen years of age, including an act constituting the offense of indecency with a child by contact, committed against D.A. on or about November 1, 2018, and an act constituting the offense of indecency with a child by contact, committed against D.A. on or about June 23, 2019, and the Defendant was at least seventeen years of age at the time of the commission of each of those acts.
The first incident occurred when appellant took D.A., D.A.'s younger sister, D.A.'s mother, and D.A.'s grandmother to a grocery store. Mother and grandmother went into the store, and while D.A. was playing with her younger sister in the car to pass the time, appellant began to massage D.A.'s leg and continued upwards towards her waistband, and then "put like his hand in [her] pants and had put his finger in [her]."
The second incident occurred when appellant drove D.A. to a store to buy toilet paper. After making the purchase, appellant drove D.A. to a building with "nobody around" and pulled backward into a garage. D.A. testified that appellant then opened the door to the back seat, got on top of D.A., "yanked" down her pants and underwear, put his penis in her vagina, and started "raping her."
Appellant's argument rests on the alleged inconsistent and imprecise nature of D.A.'s testimony regarding the timing of the alleged offenses. Although D.A. acknowledged that she did "not know timelines[,]" she opined that the first incident occurred right before her twelfth birthday in November 2018, adding: "I believe so but I'm not for sure."
Regarding the second incident, D.A. claimed multiple times in multiple ways that it occurred at least one month after the first incident. Initially, she agreed the second incident occurred "approximately a month prior" to the first incident. She then testified that the first incident occurred "a minute before the next one happened." When asked to clarify what she meant by "minute," D.A. explained: "It's like a few months or, I don't know if it was a few months or a month." Later, she indicated that the two incidents could have been weeks or a month apart. When asked if she could be more specific, she responded, "Like 30 days but I can't be more specific. I couldn't say if it was [a] month or not." And even later in the trial, she reasserted that the incidents occurred "about a month" apart. Her testimony is sufficient to establish that the two incidents occurred at least one month apart. See Tex. Code Crim. Proc. Ann. art. 38.07 (testimony of child victim alone is sufficient to support conviction for continuous sexual abuse of child.); see also Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006) ("Especially where young children are involved, we have cautioned that courts cannot impose unrealistic expectations regarding proof of when an offense actually occurred"); Michell v. State, 381 S.W.3d 554, 561 (Tex. App.-Eastland 2012, no pet.) ("The legislature created the offense of continuous sexual abuse of a child in response to a need to address sexual assaults against young children who are normally unable to identify the exact dates of the offenses when there are ongoing acts of sexual abuse.").
Furthermore, medical records from Texas Children's Hospital and The Children's Assessment Center-dated July 16 and 17, 2019-indicated that the second incident occurred "approximately four weeks ago." Thus, crediting the medical records and D.A.'s testimony, the jury could reasonably conclude that the first incident occurred in November 2018 around D.A.'s twelfth birthday and the second incident occurred in June 2019, more than thirty days later. And to the extent that D.A.'s testimony could be considered inconsistent either internally or with the medical records, we defer to the jury's resolution of any alleged inconsistencies and presume that the jury resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326.
Accordingly, we overrule appellant's sole issue.
III. Conclusion
We affirm the judgement of the trial court as challenged on appeal.