Opinion
03-23-00094-CR 03-23-00097-CR
08-21-2024
Devin Andrew Rutherford, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NOS. CR2016-658 & CR2016-657 THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING
Before Baker, Triana, and Kelly, Justices.
MEMORANDUM OPINION
Chari L. Kelly, Justice.
A jury convicted Devin Andrew Rutherford of one count of sexual assault of a child and one count of indecency with a child by contact, both for conduct involving then-minor C.D. committed in 2015. The jury also convicted Rutherford of another count of indecency with a child by contact, for conduct involving then-minor C.C. committed on the same day as that involving C.D. (Both women are now adults.) In a sole appellate issue, Rutherford attacks the conviction verdicts on all three counts by contending that C.D.'s and C.C.'s testimony was legally insufficient to support any conviction verdict at all. We affirm.
See Act of May 12, 1981, 67th Leg., R.S., ch. 202, § 3, 1981 Tex. Gen. Laws 471, 472 (amended 2001, 2009) (current version at Tex. Penal Code § 21.11(a)(1), (c)(1)) [hereinafter Former Section 21.11]; Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 3, 1985 Tex. Gen. Laws 5311, 5312-13 (amended 1985, 1991, 2003) (current version at Tex. Penal Code § 22.011(a)(2)(A)) [hereinafter Former Section 22.011].
See Former Section 21.11.
BACKGROUND
In December 2015, then-14-year-olds C.D. and C.C. sneaked out of C.D.'s home at night to go to a birthday party at Isaiah Gutierrez's house. Gutierrez, an adult, was at the party, and so was Rutherford. Rutherford was then 21 years old.
At the party, C.D. and C.C. smoked more marijuana than either was used to, and both drank alcohol for the first time-a lot of it. All this made them feel sick, affecting C.C.'s ability to stay standing and making it hard for C.D. to walk and keep her eyes open.
At one point Rutherford took C.C., according to her, to the house's front porch. He held her upright, touched her breast over her clothing, and rubbed her stomach. He then went further-C.C. would testify that Rutherford touched her vagina "right above the lip area," that this place is private to her, and that the touching made her feel bad. She knew it was wrong and, she added in testimony, "definitely remember[s] it" happening. C.C. eventually went back inside the house and lay down in one of the bedrooms.
Although Rutherford's acts on the porch were the ones involving C.C. charged here, C.C. testified about other acts committed after she went back in the house. She testified that while she was still feeling bad from the drinking and marijuana, Rutherford helped her into the bedroom, got on top of her, kissed her, and touched her buttocks over her clothes. He then left the room.
In the other bedroom, C.D. and Gutierrez were sexually intimate. (C.D. did not report Gutierrez to prosecutors until close to the trial in this case.) After they stopped, C.D. went to the bathroom, wearing only a blanket. When she came out, Rutherford, according to her, was right outside the door and took her into the bedroom where C.C. was lying on the bed.
C.D. would testify about what unfolded in the bedroom. Rutherford told her "that he was going to take care of us," and he "guided [her] to the bed" while she was still wearing only a blanket. He approached her on the bed, where she was next to C.C., and he continued to say that he "would take care of us." When C.D. tried to get up, he tried to kiss her and pushed her shoulders down. Then, Rutherford "had his hands" both "around and inside of [her] vagina" without her consent. It made her uncomfortable, and she got scared that he would rape her because he "wouldn't stop touching" her. She yelled for Gutierrez, who came in the bedroom and got angry with Rutherford. C.D. and C.C. soon left the party and eventually went back to C.D.'s home.
Less than three months later, C.D. and C.C. each told their mothers about what happened to them at the party. The mothers reported Rutherford to law enforcement, and he was charged with the counts against C.D. and C.C. detailed above.
At trial, C.D., C.C., and the sheriff's deputy who took the mothers' reports testified. Rutherford testified in defense, stating that C.D. and C.C. lied in their testimony and that he was never alone with them and denying that he had done any of what they testified to. Still, the jury found him guilty of the three charges at issue. He now challenges the three conviction verdicts.
LEGAL SUFFICIENCY OF C.D.'S AND C.C.'S TESTIMONY TO SUPPORT CONVICTION VERDICTS
Rutherford in his sole appellate issue contends that C.D.'s and C.C.'s testimony was legally insufficient to support any conviction verdict at all. He anchors his arguments in the standard of Jackson v. Virginia, which held that the relevant question for legal-sufficiency review of the evidence supporting a conviction "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See 443 U.S. 307, 319 (1979) (emphasis removed); see also Merritt v. State, 368 S.W.3d 516, 525 n.8 (Tex. Crim. App. 2012) ("[T]he Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." (quoting Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.))).
Rutherford's position is not that C.D.'s and C.C.'s testimony did not address all elements of the charged offenses. C.D.'s testimony addressed the elements of the offenses involving her, and C.C.'s testimony addressed the elements of the offense involving her. See Former Section 21.11; Former Section 22.011. Rutherford's position is instead that their testimony is legally insufficient to support conviction verdicts because of the quality of the testimony.
When reviewing for legal sufficiency, we are mindful that it is not our role but the factfinder's to fairly resolve conflicts in the testimony; to weigh the evidence; to draw reasonable inferences from basic facts to ultimate facts; and to judge the credibility of witnesses, meaning that the factfinder may find credible all, some, or none of the testimony that any witness gives. See Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024); Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). The factfinder may "draw reasonable inferences from the evidence presented at trial, so long as each inference is supported by the evidence produced at trial." Baltimore, 689 S.W.3d at 342. When drawing those inferences, it "may use common sense, common knowledge, personal experience, and observations from life." Id.
Rutherford argues that under Jackson rationality review, C.D.'s and C.C.'s testimony was legally insufficient for any of five reasons. But we conclude that none of the proffered reasons makes the testimony legally insufficient on the elements of the offenses at issue.
Rutherford first argues that the two were so intoxicated at the party that no rational juror could believe their reports of what happened: "[T]hey were in such extreme conditions of intoxication that no rational jury could reasonably conclude that the girls' abilities to accurately perceive and recollect events around and about their persons were intact and reliable." Yet, aside from citing authorities about the Jackson standard more generally, Rutherford cites no authority suggesting that a witness's testimony is legally insufficient to support a conviction when the witness was so intoxicated during the events testified about that believing the testimony falls below minimum Jackson rationality. Unlike Rutherford's view, Texas courts have tended to treat a witness's intoxication during the events testified about merely as a matter of credibility, which is for the factfinder to decide. See Vasquez v. State, 67 S.W.3d 229, 237 (Tex. Crim. App. 2002) ("Even if we conclude that [witness] was under the influence of cocaine at the time the assault occurred, that would not render the evidence legally insufficient. A rational jury could believe that he accurately identified appellant as one of the robbers despite the drug's influence."); see also Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997) (stating in factual-sufficiency review that complainant's intoxication bore only on credibility and thus did not "definitively . . . contradict the jury's verdict" and that though intermediate court had thought that intoxication made him "a less than credible witness, this is only one possible interpretation; it is equally plausible that [his] story, although 'confused' is true and credible"); Guajardo v. State, 176 S.W.3d 402, 404-05 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (stating in factual-sufficiency review that complainant's intoxication "goes to [his] credibility . . . and is a matter for the determination of the jury"). In line with these authorities, we conclude that it was not irrational for the jury to believe C.D. and C.C. in their testimony about the elements of the offenses even though the women otherwise testified that their intoxication on that night affected their normal functioning.
Rutherford next argues from C.D.'s and C.C.'s admitted difficulty remembering parts of that night, saying that because their testimony was "so full of 'I don't remembers' and 'I can't recalls' and 'I don't knows' based apparently on the amount of alcohol and marijuana consumed," "their certitude of the Appellant's behavior, about virtually anything pertaining to the offenses, is doubt[-]inducing to say the least and suspicious at most." In the face of a lack-of-memory argument like this, when a witness testifies about events that took place while the witness was intoxicated, the witness's testimony is legally sufficient to support a conviction when other evidence shows that the intoxication did not prevent the witness from remembering and recounting what happened. Jasso v. State, 112 S.W.3d 805, 809 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd); see Penaloza v. State, No. 03-16-00479-CR, 2016 WL 7046821, at *4 (Tex. App.-Austin Nov. 30, 2016, no pet.) (mem. op., not designated for publication) (citing this principle from Jasso with approval). The other evidence showing the witness's ability to remember can come from the witness's own testimony. See Jasso, 112 S.W.3d at 809. Both C.D. and C.C. testified about remembering many of the events of that night, and they were unequivocal in their testimony about what Rutherford did to each of them-establishing the elements of the charged offenses-though they were admittedly equivocal about other events of the night. Their testimony thus supplied evidence that their intoxication did not prevent them from remembering the events constituting the elements of the offenses, so Rutherford's argument from their other memory difficulties fails. See id.
Third, Rutherford raises discrepancies in C.D.'s and C.C.'s testimony about other events of that night, asking rhetorically how a rational jury could "reach the guilty verdicts in these cases when even while the girls were completely sober, aware, and in full control of their mental and physical faculties they differed in such dramatic and important parts of their testimony." The discrepancies that he refers to concern who, if anyone, helped C.D. and C.C. sneak out to go to the party and how the two went about sneaking out-their testimony on those topics differed in some respects. But it has long been the rule that it is for the jury to decide between conflicting versions of facts. See Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (stating in legal-sufficiency review that "jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony"); Austin v. State, 18 S.W.2d 676, 677 (Tex. Crim. App. 1929) (stating that even though victim's and victim's brother's testimony conflicted about acts committed by appellant that constituted offense, Court was "not authorized to hold that the jury should have discarded the evidence entirely because it was not in all respects harmonious"). Because the jury gets to make that decision, discrepancies like those that Rutherford raises do not make the evidence legally insufficient. In any event, there were no discrepancies between C.D.'s account of the offenses committed against her and C.C.'s account of the offense against her, so Rutherford's argument does not undermine the conviction verdicts.
Rutherford next accuses C.D. and C.C. of testifying falsely because of a motive to protect Gutierrez, arguing that the focus of their testimony "was to place all blame onto the Appellant and spare all others from any kind of culpability as evidenced by C.D.'s bold and determined testimony . . . to shield [Gutierrez] from any and all criminal liability." But such a motive does not make each witness's testimony legally insufficient to support a conviction- motive and bias are classic matters within the factfinder's purview to decide. See Shavers v. State, 881 S.W.2d 67, 73 (Tex. App.-Dallas 1994, no pet.) (rejecting appellant's legal-sufficiency argument based on witnesses' purported motive to lie because "[t]he determination of the credibility of the witnesses is an issue for the jury, not the appellate court"); see also Norris v. State, No. 02-23-00298-CR, 2024 WL 3458077, at *6 (Tex. App.-Fort Worth July 18, 2024, no pet. h.) (mem. op., not designated for publication) ("[W]hether P.B. had a motive to lie goes to her credibility. . . . Because the jury-as the sole judge of P.B.'s credibility-was free to believe her testimony, her supposed motive to lie has no bearing on our legal-sufficiency analysis." (internal citation omitted)). Rutherford's argument in effect asks us to rule that the jury should not have believed C.D. and C.C., but our role is limited to deciding whether the jury rationally could have believed them. See Baltimore, 689 S.W.3d at 341-42.
Our conclusion is much the same for Rutherford's final argument-that purported motivations by C.D. and C.C. to delay making their outcries or to withhold some facts from investigators undermine their testimony. These too are matters of witness credibility, not of the legal sufficiency of C.D.'s and C.C.'s testimony to support a conviction.
In all, Rutherford has shown no reason why a rational juror could not have found the elements of the offenses beyond a reasonable doubt from C.D.'s and C.C.'s testimony. See Jackson, 443 U.S. at 319. We thus overrule his sole issue.
CONCLUSION
We affirm the trial court's judgments of conviction.