Opinion
No. 06-17-00003-CR
07-12-2017
DONALD MICHAEL ROACH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas
Trial Court No. 1625359 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
The Eighth Judicial District Court of Hopkins County, Texas, convicted Donald Michael Roach of continuous sexual abuse of K.B., a child. After a bench trial, Roach was found guilty and sentenced to twenty-five years in prison.
To guard the child victim's privacy, we refer to her as K.B., her mother as Amy, and her paternal grandmother as Cathy. See TEX. R. APP. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
On appeal, Roach contends that there is legally insufficient evidence to support his conviction. Because we find sufficient evidence to support the conviction, we affirm the trial court's judgment.
I. The Evidence Is Legally Sufficient to Support the Judgment
A. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "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.
The indictment alleged that Roach committed the following acts of sexual abuse against K.B.: (1) one count of indecency with a child by contact by touching K.B.'s genitals; (2) indecency with a child by contact by causing K.B. to touch Roach's genitals; (3) one count of aggravated sexual assault by causing the sexual organ of Roach to contact the sexual organ of K.B.; (4) three counts of aggravated sexual assault by causing K.B.'s mouth to contact Roach's sexual organ; and (5) two counts of aggravated sexual assault by causing K.B.'s sexual organ to touch Roach's mouth. The indictment further alleged Roach committed these acts in Hopkins County, Texas, over a period of thirty or more days beginning on or about June 1, 2015, during which period Roach was seventeen years of age or older and K.B. was younger than fourteen years of age. Consequently, based on the indictment and the statute, the State had to prove that, with intent to arouse or gratify the sexual desire of any person, Roach committed two or more of the alleged acts of sexual abuse against K.B. over a span of thirty or more days. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2016).
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(1) (West 2011).
Section 21.02 of the Penal Code requires proof that the defendant committed "two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims." TEX. PENAL CODE ANN. § 21.02(b)(1) (West Supp. 2016).
On appeal, Roach does not challenge that the alleged events occurred in Hopkins County, Texas, or that at the time of the alleged events, he was older than seventeen years of age and K.B. was younger than fourteen years of age.
B. Summary of the State's Evidence
1. The Complaining Witness, K.B.
At the time of trial, K.B. was eight years old. She testified that Roach was "going to become [her] stepdad," but that he "did wrong to [her]." K.B. called her vagina a "Tinker Bell" and referred to a man's penis as a "hot dog." She testified that, after her mom and brothers went to sleep, Roach would wake her up and "make [her] shake his hot dog." She remembered that he also had her shake his hot dog when they were sitting in chairs near a deer stand. She testified that in their living room, Roach "put his hot dog in [her] mouth" and made her "taste this gray stuff that comes out of his hot dog." She said Roach called the grey stuff his "milk."
K.B. also testified that Roach touched and rubbed her vagina. She said Roach, while in their kitchen, would lick her vagina and that "sometimes he would [try to] put his hot dog in it." When he licked her vagina she testified that it "[f]elt ticklishly and nasty like he was putting goo on [her] Tinker Bell." She said that when her brothers were away at camp, Roach "once put his hot dog in [her] Tinker Bell." She also testified that one night, after everyone else was "[i]n bed asleep," Roach licked her vagina while the two of them were in his truck. She did not want to do these things with Roach, but he told her, "[I]t's all right, it's not bad." Roach warned her in a "very, very, very mean tone" that if she ever told anyone, they would not see each other again and her mother would be upset.
The events she described happened over "two whole years," "half of pre-K . . . and half of first grade and [the] whole year of kindergarten." It stopped in February 2016 when Roach "went to jail" and she started living with her "memaw." K.B. said that when she was about five years old, Roach would make her kiss him on the lips when others were not looking and that he began "doing this stuff" to her in "August or earlier" the year she was in pre-K. However, she later claimed that Roach "didn't do nothing bad when [she] was five."
2. K.B.'s Paternal Grandmother, Cathy
The State also called K.B.'s paternal grandmother, Cathy, as an outcry witness. She testified that in February 2016, K.B. told her that Roach would come into her room at night and remove her panties, that he had licked her "Tinker Bell," and that he sucked her breasts. She told Cathy that Roach would "lick her so much that it would irritate her in her private area," and beginning in June 2015 and continuing for nearly a year, Cathy noticed that K.B.'s vagina was often red and irritated. K.B. told her of the sexual contact occurring near the deer stand and that Roach had put his penis in her mouth and warned her that if she told anyone, "she wouldn't be able to be around her mother and her brothers and that he would kill them and kill her." Cathy testified that K.B. had been having bad dreams and angry outbursts and that K.B. was "scared that [Roach was] going to kill her mother and her brothers."
3. Sexual Assault Nurse Examiner, Rosalyn Anglin
After K.B.'s outcry, Rosalyn Anglin, a Sexual Assault Nurse Examiner (SANE), spoke with and examined the child. Anglin said that K.B. "knew why she was there" and that she told Anglin "some things that had happened to her." Anglin's examination report reads, in pertinent part:
Patient stated, he tried to rub me all over. And I asked who. Donald Roach. He licked my Tinker Bell and sometimes he would rub it with his hand. He sucked on me where babies suck, and points to breasts. He tried to put his bad spot in my Tinker Bell. I named it Dancer. Sometimes he wanted to -- wanted me to shake it, and she moves her arm up and down. He called his clear stuff that comes out of his Dancer his milk. He tried to rub my bobo with his hand. He would move Dancer around. He put Dancer in my mouth. He already shaked it up. He squeezed his milk out in my mouth . . . Last Thursday night he kept waking me up. He wanted me to shake Dancer. He kept checking on Mom till 12:00. He told me it will be one minute. I looked at the clock. It was one minute. I shook it once when he asked me.The examination revealed no evidence of physical trauma, no surface injuries, and no redness or irritation. Anglin admitted that such findings could mean that the child had not been assaulted, that "[n]othing had happened;" however, she was not surprised by the absence of physical evidence because about 95% of her cases had no trauma.
4. Child Advocacy Center Interviewer, Mary Spurlin
Mary Spurlin, a counselor with the Northeast Texas Child Advocacy Center, interviewed K.B. and testified that K.B. "talked about [Roach] licking her -- rubbing her Tinker Bell . . . licking it, also touching it with his penis, which she named Dancer." According to Spurlin, K.B. said that the acts of abuse took place in the living room, her brother's room, and in Roach's truck. Spurlin testified that during the interview, K.B. was scared and "seemed to be embarrassed to talk about it," both behaviors consistent with having been sexually abused. She admitted that it was possible that someone else had prepared K.B. for the forensic interview, that an outcry of abuse could be baseless, and that a child witness could be lying and still be able to give a convincing interview.
5. K.B.'s Mother, Amy
Amy, K.B.'s mother, testified that she and Roach were in a relationship for almost seven years and that even though she initially believed Roach's denial of the allegations, the relationship ended shortly after K.B.'s outcry. She confirmed that, on occasion, K.B. would go with Roach when he went hunting at a deer lease or deer stand. She had taken K.B. to a pediatrician "several times" from the time K.B. was in kindergarten through the time she was in first grade, reporting redness to K.B.'s vaginal area, though Amy admitted that K.B. "has always had problems with her lower half." On cross-examination, Amy admitted that K.B. had lied to her about a boy in her kindergarten class picking on her.
C. Summary of the Defense's Evidence
Several witnesses testified for the defense. Susan Fisher, a victim assistance coordinator for the district attorney's office, testified that, during an interview, Amy told her that K.B. had made an outcry of abuse against Roach "approximately a year or earlier than the current charges," but that, after telling Cathy, K.B. told Amy "that it wasn't true." K.B.'s elementary school teacher, Donna Yarbrough, testified that K.B. was a "normal six-year-old," that she had never known K.B. to lie, and that the charges against Roach surprised her because she never noticed anything in class that would have led her to suspect that K.B. was being abused.
Angela Maynard and Mary Ann Roach, Roach's aunt and sister, described Roach as a very affectionate person. Mary Ann had no concerns with leaving her young children in Roach's care, and having lived with Roach, Amy, and her three children for "six, eight months" and having stayed there overnight every other weekend after that, she believed that Roach's house was so small that if anyone had gotten up in the night, others would have heard it. Angela and Mary Ann testified that K.B. was always "getting the boys in trouble" and "always lying on the boys." According to both witnesses, Roach and his family frequently visited Rhonda Puckett, who testified that K.B. liked to sit in her husband's lap and "hug on him," Puckett indicated that she advised her husband to stop allowing the child to do so because she felt that "something just ain't right," as K.B. was "too affectionate" toward him. Roach, taking the stand in his own defense, admitted that he had a drinking problem and testified that K.B. was very affectionate toward him, but he denied that he had ever inappropriately touched her and completely denied the charges against him.
D. Analysis
Roach argues that there are no facts in this case from which a jury could find beyond a reasonable doubt that he committed the alleged acts "with intent to arouse or gratify the sexual desire of any person." However, a jury may infer the requisite intent from the conduct of, remarks by, and circumstances surrounding the act engaged in by the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982); Russo v. State, 228 S.W.3d 779, 793 (Tex. App.—Austin 2007, pet. ref'd). Here, K.B. testified that the various instances of sexual contact occurred at home after others in the house had gone to sleep, in Roach's truck, and while the two of them were sitting in chairs near a deer stand. The jury could have reasonably inferred from this testimony that Roach chose a time and place to sexually contact K.B. where the risk of being seen was lower and, therefore, that he possessed an intent to arouse or gratify his own sexual desire. See Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref'd) ("[T]hus the jury could infer from Abbott's conduct of touching W.T.'s genitals that it was done with intent to arouse or gratify his sexual desire."). Moreover, the record reveals no circumstances that would suggest another purpose or intent. See Baker v. State, 781 S.W.2d 688, 688-90 (Tex. App.—Fort Worth 1989, pet. ref'd). From the circumstances here, the jury could have inferred the intent to arouse or gratify Roach's sexual desire.
Roach also contends that (1) "[s]everal years had passed" between the alleged abuse and the time of trial; (2) K.B.'s testimony was confusing; (3) K.B.'s testimony was largely uncorroborated by other witnesses or evidence; and (4) "there was no evidence of any [physical] trauma to [K.B.'s] vagina or mouth." However, the trier of fact is the sole judge of the weight and credibility of the testimony and evidence and is free to believe all, some, or none of a witness' testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The issues highlighted by Roach merely created fact and credibility questions that the trial court, as the trier of fact, resolved against Roach prior to entering its verdict. See id.
II. Conclusion
A child victim's testimony is sufficient to sustain a conviction for continuous sexual abuse of a child. Reckart v. State, 323 S.W.3d 588, 598 (Tex. App.—Corpus Christi 2010, pet. ref'd). Here, K.B. testified that Roach had committed two or more of the acts of sexual abuse alleged in the indictment, that the abuse started in August or earlier, and that the abuse stopped when Roach was arrested the following February. She also gave consistent outcry statements to Cathy and Anglin. Viewing the evidence in the light most favorable to the verdict, we find the evidence is legally sufficient to support Roach's conviction for continuous sexual assault of a child. Therefore, we overrule this point of error.
Child complainants are "not expected to testify with the same clarity and ability as is expected of a mature and capable adult." Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref'd) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)).
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: April 10, 2017
Date Decided: July 12, 2017 Do Not Publish