Opinion
05-22-01215-CR
01-31-2024
THOMAS MITCHELL TOTTEN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 33225CR.
Before Carlyle, Goldstein, and Breedlove, Justices.
MEMORANDUM OPINION
MARICELA BREEDLOVE, JUSTICE.
Appellant Thomas Mitchell Totten was convicted of aggravated sexual assault of a child after a jury trial and sentenced to a term of imprisonment of 12 years. Appellant appeals, complaining in one issue that the evidence was legally insufficient to support the conviction. We affirm the trial court's judgment.
I. BACKGROUND
Appellant was charged via indictment with having penetrated the sexual organ of Jane Doe with his finger. Jane Doe is appellant's daughter and was 11 years old at the time of the incident, and 13 years old at the time of trial.
The complainant is identified by the pseudonym "Jane Doe A(28749)" in the indictment, but for simplicity we refer to her simply as "Jane Doe" or "Doe" throughout this opinion.
On February 24, 2020, Jane Doe, a fifth grader at Bowie Elementary, came to her school counselor, Sandra Ruprecht, visibly upset and asked to speak with her. Doe told Ruprecht that she was scared of appellant because he had been hitting, slapping, and yelling at her and that they had been fighting about Doe's bathing. Doe explained that appellant insisted on helping her bathe despite her repeated requests that she be allowed to bathe in privacy, and that his assistance made her uncomfortable. Doe told Ruprecht that appellant would wash her hair and all over her body, including her breasts and genitals. Ruprecht reported these allegations to the appropriate school authorities, Child Protective Services (CPS), and law enforcement personnel.
The following day, Doe was taken by law enforcement to the Children's Advocacy Center (CAC) for a forensic interview. Rachel Mitchell, the forensic interviewer, testified that Doe reported to her that appellant would rub soap all over Doe, including inside her crotch. Mitchell testified that Doe complained that during her shower almost every day, appellant would put his fingers inside of her crotch, "wiggle them around," and that it felt like scratching her insides and it hurt. Doe also told Mitchell that she had asked appellant not to help bathe her but that he insisted.
After the CAC interview, Doe was taken to Commerce Hospital for a Sexual Assault Nurse Examiner (SANE) exam. Doe told similar information to the SANE nurse, Misty Edzards, including that appellant had put his fingers inside of her crotch area, scratched her on the inside, that it was painful and burned when she peed, and that she saw blood on her toilet paper. Doe told Edzards that he had not ever told anyone what was happening because she feared what appellant would do, and that she wanted him out of the house where he could not to hit her again. The SANE report reflected a bruise on Doe's right arm, which Doe explained was from blocking her father's attempt to hit her. Edzards also discovered a one centimeter abrasion inside the labia minora at the 7 o'clock position that was consistent with Doe's version of events.
Appellant submitted to a voluntary police interview on the day of the SANE exam. Appellant vehemently denied touching Doe's genitals recently, even accidentally, but indicated that he did assist her to wash her back and hair in the shower because his daughter needed assistance treating acne and dandruff. He told investigators that Doe had hit her genitals while riding a bike the previous day as a possible explanation for any findings during the SANE exam. Appellant also discussed a previous CPS investigation wherein he was investigated after reports of inappropriate conduct with his daughter, which he said had been years ago. Detective Bobby Wooldridge discovered that the investigation actually took place the previous year.
Appellant was arrested after law enforcement's receipt of the initial SANE report. Appellant was tried before a jury for the first degree felony offense of aggravated sexual assault of a child. The jury found appellant guilty and sentenced him to 12 years in prison. Appellant appealed on November 10, 2022. In one issue, appellant complains that the evidence was legally insufficient to establish appellant intentionally or knowingly committed the offense.
II. STANDARD OF REVIEW
In determining whether the evidence is sufficient to support a criminal conviction, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 316 (1979). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 313; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury, as the fact-finder, may make reasonable inferences from the evidence presented at trial in determining appellant's guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). When there is conflicting evidence, we presume the fact-finder resolved those conflicts in favor of the verdict and defer to that resolution so long as it is supported by the evidence. Jackson, 443 U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We also defer to the trier of fact's determinations of witness credibility and the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the "rare occurrence when a factfinder does not act rationally." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quoting Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009)).
III. APPLICABLE LAW
A person commits aggravated sexual assault of a child if at the time of the offense, he intentionally or knowingly causes the penetration of the sexual organ of a child by any means if the child is younger than 14 years of age. Tex. Penal Code Ann. § 22.021. A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Tex. Penal Code Ann. § 6.03(b). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id.
Because the accused's mental state is usually "[c]oncealed within his own mind, intent and knowledge are most often proven through circumstantial evidence surrounding the crime." Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). A jury may infer knowledge or intent from any facts that tend to prove their existence, including the acts, words, and conduct of the accused; the method of committing the crime; and the nature of the wounds inflicted. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
IV. DISCUSSION
Appellant challenges only the evidence supporting the mens rea requirement, arguing that the penetration of Doe's vagina was accidental and that the evidence was legally insufficient to show that the penetration was the result of intentional or knowing conduct. In support of this, appellant points to Doe's own testimony at trial wherein she stated that she did not know if the penetration was accidental or intentional. However, other evidence in the record supported a conclusion that the act was intentional, and the jury, as the factfinder, was entitled to credit this evidence. See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
The specific intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks, or all the surrounding circumstances. Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.-Fort Worth 1999, pet. ref'd). An oral expression of intent is not required, and a defendant's conduct alone is sufficient to infer intent. Id.; see also Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.-Waco 2006, pet. ref'd) (holding jury could infer intent to arouse or gratify sexual desire from defendant's act of touching child's genitals). Furthermore, intent can be inferred from the appellant's conduct after the incident. Couchman, 3 S.W.3d at 163.
Appellant himself vehemently denied he had touched Doe's genitals, even by accident. Appellant also tried to explain away any potential vaginal pain experienced by Doe as a result of stopping too hard on her bike the previous day. When asked why his sister, who lived with him and Doe, could not have provided Doe assistance with her hygiene, appellant provided inconsistent answers. The jury, as the sole judge of the credibility of the witnesses, was entitled to disbelieve appellant's testimony. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899.
Further, the jury heard testimony from Doe's pediatrician, Dr. Allembaugh, that there was no medical reason for appellant to touch or wash Doe's genitals and that the medication for Doe's dandruff and acne were applied before and after the shower, respectively, not during, which precluded the need for appellant to be present or assist Doe while showering. Dr. Allembaugh had also previously cautioned appellant of the importance of providing Doe with more personal space and eliminating physical displays of affection that made Doe uncomfortable in response to the prior CPS investigation. These facts, taken together, are legally sufficient evidence to support a finding of knowledge or intent. See Couchman, 3 S.W.3d at 163. We overrule appellant's sole issue.
V. CONCLUSION
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.