Opinion
No. 11-04-00072-CR
Opinion filed November 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 385th District Court Midland County, Texas, Trial Court Cause No. CR-28,411.
OPINION
Roy Lee Steinke appeals his convictions by a jury of four counts of aggravated sexual assault. The jury assessed his punishment in each count at 99 years in the Texas Department of Corrections, Institutional Division. He contends in two points that the evidence is factually insufficient to support his convictions and that his convictions of both Counts I and II and both Counts IV and V violate the Double Jeopardy Clause of both the United States and Texas Constitutions. We affirm as to Counts I and IV, and we reverse and order dismissed Counts II and V. Steinke urges in point one that the evidence is factually insufficient to support his convictions. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004). Meagan Stroup, sister of the complainant's stepfather, testified that, as she was bathing the complainant and the complainant's sister on or about February 19, 2003, they were sliding down the back of the bathtub just as they always did. She related that at that time she noticed that the complainant's bottom was really red and bruised. She stated that she got her friend Lacy to watch the girls while she went and got her mother. She said that she told her mother that the complainant said, "Roy sticks him (sic) heinie in me." She testified that after this they took the complainant to the hospital. Meagan related that at that time the complainant was 3 years of age. She acknowledged that she had bathed the child often but had never noticed this condition before. She said that, if the complainant had been red and bruised before, she would have noticed. Meagan gave her age as 13. Chris Stroup, Meagan's mother, testified that, when Meagan brought the complainant to her, she asked the complainant what happened and that the complainant replied, "Roy poked him's (sic) heinie at me." She indicated that the complainant's anus was "bruised, black." She said that it was "just a bruised purple looking, that went all the way to her cheeks of her buttocks." She said that she called her husband, who is a deputy with the sheriff's office. She related that he told her to take the complainant to the hospital. She testified that she had previously bathed the child but had never seen anything like it before. She acknowledged that she had never previously heard the complainant complain about someone named Roy. She insisted that there were no other "Roys" besides Steinke who would have had contact with the complainant. She said that she was quite sure that if the complainant had had the injuries earlier she would have noticed. Chris testified that her son, Curtis Robertson, was 24 years of age at the time in question and that he had bathed the girls. In a videotaped interview, the complainant told Jo Ann Sarabia that "Rory" stuck his "weenie" in her "heinie." At times, the complainant's descriptions of things were incomprehensible or fanciful. For example, when asked if she had ever seen "Rory's weenie," she told Sarabia, "It was brown, with a bear, with a butterfly, with a heart, with a bear, with a dinosaur, with a star, with a heart, with a (INAUDIBLE)." The complainant also told Sarabia that the "weenie" hurt and that no one else had done anything like that. Lucy Smith, a therapist at the Midland Rape Crisis and Children's Advocacy Center, explained that the complainant used avoidant behaviors when asked about the details of what had happened and that this is what children do. When asked about the complainant's comments regarding "Rory's" skin color, that it was "blue and purple and orange," Smith said that it was not uncommon for someone at the complainant's developmental level to say that. She said that it would be common for a child the complainant's age to explain something that had happened to her a year before. She said that, in determining if an outcry is valid, she looks at a child's developmental level, the child's verbal skills, and whether the story is consistent over time. She said that in the complainant's case the details were consistent over time. On cross-examination, Smith acknowledged that it was possible for a child the complainant's age to be coached. She admitted that she did not know exactly what went on between the complainant and her support group prior to the taping. She testified that one can tell a child who has been coached by their demeanor, by the way they project themselves, and by the way they state things. She said that they would tell things exactly by rote and have more details. She insisted that the complainant's mother never told her that she suspected Chris Robertson was responsible for the sexual abuse. Smith also related that she thought that the complainant's ducking and turning away during the taped interview was a sign of embarrassment on the complainant's part. Sarabia, the interviewer on the tape, testified concerning her forensic interview training. She spoke of criteria that she uses in assisting investigators in determining whether a complainant is being truthful. She related that one criterion is the timing and circumstance of disclosure. She noted that the child's outcry came during bathing and that it was spontaneous. Another criterion appears to be, according to Sarabia, whether the language used in the outcry was congruent with the child's developmental level. She stated that in this case the complainant's language is congruent with her developmental level. She said that a third criterion is quality and quantity of details. She insisted that it would be sufficient for a child of that age to give the "who and what." She related that a fourth criterion is the appropriateness of the child's sexual knowledge, based upon the child's developmental level. She stated that a child of the complainant's age would not ordinarily know that a "weenie" goes into a "heinie." Sarabia set forth a fifth criterion, repetition over time. She noted the consistency of the reports as to what the complainant said about what had happened to her. Sarabia related another criterion, plausibility of abuse. She expressed her opinion that abuse from Steinke is plausible with the complainant. Finally, she noted the last criterion, the emotional reaction of the child. She said that she observed avoidant behavior both at the 2004 interview and at an earlier interview in February 2003. The February 2003 interview was played before the jury. The complainant did not make any type of outcry in that videotape. Sarabia explained that the interview was conducted at 9:00 p.m. after other investigation and that the complainant would have been tired. She insisted also that the child was being avoidant. She insisted that the complainant had affirmed, but never denied, abuse by Steinke. She acknowledged that she was unaware there might be three Roys in the family who had access to the child. She acknowledged that she was unaware of any allegation that it might have been Curtis Robertson who was guilty of the abuse but that it would have been important to know. Shanel Rothenberger, the complainant's mother, identified Steinke as someone with whom she used to go out and as the father of the complainant's sister. She also stated that Curtis Robertson was the father of the complainant's other sister and that his mother is Chris Stroup, the mother of Meagan Stroup. She related that, when Chris told her of the molestation, she was with Steinke. She said that, when Steinke figured out about the molestation charge, he took out his wallet, counted his money, and told her he did not do it. She stated that he was not concerned about who did it or about the complainant's well-being. She said that Steinke took her to the hospital and then left rather than staying and being supportive. He said that he did not want to be around people who could accuse him of such a thing. She indicated that she did not want to believe the accusation because she loved Steinke but that he was the only one the child accused of doing it. Rothenberger testified that the complainant had not changed her story in a year and that she did not like to talk about Roy. Rothenberger acknowledged that there were two other Roys in the family besides Steinke: a grandfather and an uncle. She described the grandfather as someone who is very sick and who has had five bypasses. She said that he could hardly get out of bed, that the complainant rarely sees him, and that the complainant had not been alone with him. She insisted that the complainant had never seen her uncle Roy until after any abuse occurred. She also had a picture of a friend named Corey and said that the complainant denied that he was involved and that Corey did not have access to the complainant. She related that there were times when the complainant would have been alone with Steinke. Rothenberger acknowledged that she had been using speed and cocaine. She said that she was unable to protect her children during the time she was using drugs. She denied bringing any Roys other than Steinke around her children. Rothenberger testified that Pam Roges is her mother. Rothenberger indicated that Steinke stayed with her for two weeks in January or February of 2002, a year earlier from the date the complainant was taken to the hospital for investigation of abuse. She said that during that time she was on drugs and unable to protect the complainant. She said that she often slept during the day and did not wake until noon or one o'clock in the afternoon. She indicated that she did not know if Steinke ever missed work during the two-week period. She acknowledged that generally someone was always around when she was with Steinke and had the complainant. Rothenberger said that two incidents she described where Steinke had been with the complainant for 15 minutes at a time occurred about 2 weeks before February 19, 2003. She said she never observed Steinke sexually abuse the complainant. She did say that she heard the complainant ask Steinke if he wanted to see her "ninnies," which in her family's language meant "breasts." Rothenberger acknowledged that she had told Winston Steinke, Roy Steinke's brother, that she did not believe that his brother had committed the acts of which he was accused but that she believed Curtis Robertson, Earl Stroup, or Tony Roges could have done it. She said that, during the one-year period from February 19, 2002, to February 18, 2003, she did not observe any part of the complainant's rear or front privates that appeared to be bright red, bruised, or anything like that. Rothenberger acknowledged that the complainant had never complained to her about Steinke touching her privates or anything like that. Rothenberger acknowledged that Chris and Earl Stroup kept the child every weekend, and sometimes during the week, during the yearlong period prior to discovery of the abuse. Pam Roges testified that she is the mother of Shanel Rothenberger and, therefore, the complainant's grandmother. She indicated that on February 19, 2003, after receiving a call from Chris Stroup, she went to Chris's home and examined the complainant's bottom. She noticed that it was bruised and "real red." She stated that, when she asked the complainant what happened, she said that "Roy had poked her . . . with his weenie." She indicated that the complainant said that she did not like Roy and did not want to be around him. According to Pam, the complainant did not say anything about how many times this had happened. Pam also acknowledged that she had never observed any inappropriate behavior on the part of Steinke toward the complainant. Pam indicated that she had kept the complainant at night and bathed her during the year before the outcry but had never seen any bruising or redness of her privates. She said that her brother Roy did not have contact with the complainant when he came from Alabama to be with his father, who was thought to be dying. She said that Roy's trip was after February 19, 2003. Pam observed that the complainant says Steinke's name as "Rory." She also indicated that the complainant referred to her uncle as "Uncle Roy" and to her grandfather as "Grandpa Bill." Lynne Glasscock testified that she is a registered nurse who had been a Sexual Assault Nurse Examiner for seven years. She described the Sexual Assault Nurse Examiner program as an attorney general's program that required 56 hours of classroom work and certain examinations. She indicated that she examined the complainant on February 19, 2003. She said that, when the complainant was put in a position on her back with her knees up and spread apart, she took her fingers and spread her labia majora apart when the examiner said that she wanted to look at her private parts. She noted that that was very unusual behavior for a three-year-old child. Glasscock testified that, when she examined the complainant's hymen, she found notches on the hymen, which indicated to her that there had been injury and that the area had healed. She stated that the notch would have been caused by something tearing the piece of tissue all the way through or by something that had chronically rubbed and eroded it. She suggested that the hymen would be thin and painful in this condition. She said that a mother or a grandmother would not know how to recognize the problem. Glasscock identified State's Exhibit No. 4 as a picture of the redness and bruising that the relatives would have seen. She said that, when pressure was applied to the complainant to cause her anus to open up for observation, there was an anal dilation within five seconds. She stated that this indicated that there was stretching and/or tearing of the anal sphincter muscle fibers. She related that upon examination she found what she termed "erosion," noticing that there was constant rubbing that had caused a skinned area on the anus. She said that the anal opening was elongated, rather than in a circle, and that this was indicative of torn fibers. She indicated that she observed notching in the anal area as well. She testified that in her opinion, if the complainant said that Roy stuck his "weenie" in her "heinie," his doing so would cause the kind of injuries she had observed. She stated that the injury could either be fresh or from two to three weeks before. She also indicated that there had been more than one incident. She declared that there could have been three incidents eight weeks earlier or one incident every six weeks for years. She concluded that there was no way to date the abuse and that it could be eight weeks, a year, or two years. Glasscock concluded that there was penetration because there was injury to the hymen. David Wesley Thornhill, Steinke's brother-in-law, testified that he had never seen anything leading him to believe that the complainant was afraid of Steinke. To the contrary, he indicated that the complainant was fond of Steinke. He said that he never saw Steinke engage in any inappropriate behavior toward the complainant. He stated that Steinke had never told him that he had done anything inappropriate with the complainant. He also acknowledged that he had never seen anything inappropriate between either Tony Roges or Curtis Robertson and the complainant. He did testify that he saw Rothenberger and Pam and Tony Roges use controlled substances in the child's presence and saw the complainant running around without clothes. He said that he also saw Curtis Robertson use controlled substances in the presence of the complainant. Steinke denied that he had ever been alone with the complainant for more than 5 to 15 minutes and stated that that occurred on only one occasion. He denied ever bathing the complainant but stated that he did observe Rothenberger bathing her. He said that he heard the complainant tell Pam Roges that her "heinie" hurt. He said that, when he took Rothenberger to the hospital, he did not stay because Curtis Robertson, who had threatened his life, was there. He said that he had no explanation as to why the child used his name or one that sounded like it when making her accusations. He denied doing the things he was accused of to the complainant. James Self testified that he observed Tony and Pam Roges and Rothenberger smoke marihuana around the complainant. He said that Steinke was not present on those occasions. We hold that the evidence is factually sufficient to support Steinke's conviction because the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and any contrary evidence is not so strong that the standard of proof of beyond a reasonable doubt could not have been met. We overrule point one. Steinke insists in point two that his conviction and sentence of Counts I, II, IV, and V violated the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article I, section 14 of the Texas Constitution. The jury convicted Steinke, in Counts I and II, of aggravated sexual assault on or about February 6, 2003, by causing the penetration of the complainant's sexual organ by his sexual organ and by contacting her sexual organ with his. The jury convicted Steinke, in Counts IV and V, of aggravated sexual assault on or about February 6, 2003, by penetrating the complainant's anus with his sexual organ and by contacting her anus with his sexual organ. As can be seen, the indictment alleged aggravated sexual assault by contact and penetration with respect to the complainant's sexual organ and anus on one date. While there was some evidence that abuse of the child was ongoing, the child only spoke in the interview of a single incident. Under all of the facts as we have outlined above, including the videotape of the complainant, we hold that there would not be legally sufficient evidence to establish that Steinke sexually assaulted the complainant on some additional occasion. Therefore, we agree with Steinke that the State is precluded because of the double jeopardy clause of the United States Constitution from convicting him of both Counts I and II and both Counts IV and V. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Cr.App. 1998). The State argues that Steinke may not present his double jeopardy claim for the first time on appeal. However, a double jeopardy claim may be raised for the first time on appeal or even for the first time on collateral attack when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Cr.App. 2000). In this case, the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interest. Consequently, Steinke may present this point in this appeal. The State responds by pointing out the possibility that there may have been more than one incident; but, as we have noted, the evidence is legally insufficient to support a conviction based on an additional incident. Based upon Patterson v. State, 152 S.W.3d 88 (Tex.Cr.App. 2004), the State notes that, in such an event, Steinke's claim might have merit. Holding that Steinke's claim does have merit, we sustain point two. The judgments are affirmed with respect to Counts I and IV and reversed and ordered dismissed as to Counts II and V.