Appeal from the 405th District Court Galveston County, Texas
Trial Court Case Nos. 13CR3370 and 13CR3371
consists of Justices Keyes, Higley, and Lloyd.
Russell Lloyd Justice.
found appellant, Trenton Avery Ashton, guilty of two charges
of aggravated sexual assault of a child younger than fourteen
years of age,  and the jury assessed his punishment in
both cases at thirty-eight years' incarceration, with
sentences to run concurrently. In three issues, appellant
argues that: (1) the trial judge erred by denying his motion
for mistrial after it was revealed during trial that two
jurors knew the investigating detective; (2) the trial court
erred by failing to instruct the jury in cause number
13CR3370 that it must unanimously find that a single incident
of the charged offense was proven beyond a reasonable doubt;
and (3) the trial court erred by failing to instruct the jury
in cause number 13CR3371 that it must unanimously find that a
single incident of the charged offense was proven beyond a
reasonable doubt. We affirm the trial court's judgment.
and Proceedings A. Factual
2013, J.W. began babysitting seven-year old J.S. at
J.W.'s home four nights a week while the boy's mother
worked the night shift. J.W. shared her home with her husband
and nephew, as well as her son, appellant.
mother, the outcry witness, testified that, on November 18,
2013, J.S. told her that appellant "stuck his wee-wee in
my butt" and "white stuff came out." He also
told her that appellant stuck his "wee-wee" in his
mouth and asked him what it tasted like. J.S. told her that
he did not like what appellant had done to him because it
hurt and it made J.S. cry. J.S. also told her that the
incident happened on the third day of her work cycle, which
would have been November 14, 2013.
who was nine years old and in the fourth grade at the time
testified that appellant's mother babysat him when he was
in second grade. According to J.S., his mother would drop him
off at appellant's home in the afternoon, and then pick
him up early the next morning and take him home. When he
stayed at appellant's home, J.S. slept on a mattress on
the floor of appellant's room. No one else slept in
testified that "sometimes" appellant would tell him
to pull his pants down and get on the ground. Appellant would
then stick his "wee-wee" inside J.S.'s butt,
sometimes sticking it in "all the way, " which
"felt like it was burning." Appellant would also
tell J.S. to put his mouth on appellant's "wee-wee,
" and tell him to suck it. J.S. testified that he saw
"white stuff" come out of appellant's
"wee-wee" on one occasion. J.S. testified that this
happened "three or four times." According to J.S.,
appellant told him that he would give J.S. a dollar if he did
not tell anyone about the assaults. Using a doll, J.S. also
demonstrated the assault by anal penetration for the jury.
J.S. pulled the doll's pants and underwear down and then
placed the doll's hands and legs on the ground. Although
J.S. acknowledged that his mother had helped him remember a
lot of the story, he also testified that he did not talk to
anyone about changing his story.
received a forensic sexual assault exam on November 19, 2013.
The sexual assault nurse examiner (SANE) who examined J.S.
testified about the examination and relied upon a four-page
report that she had prepared documenting the exam. The report
stated in part:
When my baby-sitter isn't around her son, [appellant],
puts his wee wee in my butt and then sometimes he makes me
taste it. When he puts it all the way in my butt it hurts and
it makes me cry. He gives me a dollar and tells me not to
tell anybody. He did it to me on Thursday and then again on
Friday in the afternoon when I get there.
SANE's report noted that the sexual assaults occurred on
November 14, 2013 and the afternoon of November 15, 2013. The
SANE collected evidence, including various swabs, combings,
and the underwear J.S. was wearing during the examination.
She found that J.S. had no trauma or injury. The SANE
testified, however, that her findings were consistent with a
sexual assault, the absence of an injury to the anus is not
determinative of whether an assault occurred, and she had
"no reason not to believe" what J.S. told her.
SANE's supervisor, the clinical director of forensic
nursing services, testified that she reviewed the SANE's
report. According to the director, penetration of the anus by
a male sexual organ does not always cause injury because the
anus is an elastic muscle, and something would have to
stretch the anus past its capacity in order to tear the
tissue. She further testified that the more time that passes
between the assault and the examination, the lower the
opportunity for the presentation of an injury because of the
healing properties of the body. She also testified that no
medical test existed that could conclusively prove that
penetration had occurred.
forensic interviewer with the Child Advocacy Center
interviewed J.S. on November 20, 2013. She testified that
J.S. was "very descriptive" when he discussed the
assaults and that, although he was upset, J.S. answered all
of her questions during the interview. She also testified
that when she asked J.S. about the position he was in during
the assaults, he demonstrated it. The forensic interviewer
explained to the jury that J.S. physically put himself in a
dog-like position on the floor and then moved back and forth.
Earl Mendenhall with the Texas City Police Department was
assigned to appellant's case. Detective Mendenhall
testified that statements were taken from J.S.'s mother,
appellant, appellant's mother, appellant's aunt, and
appellant's friend over the course of his investigation.
He also arranged for J.S. to be interviewed at the
Children's Advocacy Center by a specially trained
forensic interviewer. Detective Mendenhall testified that he
subpoenaed a DNA sample from appellant that was sent to a
forensic crime lab. Nothing of evidentiary value, however,
was obtained after analysis.
gave a voluntary statement to Detective Mendenhall on
November 25, 2013. A video of the interview was admitted into
evidence and published to the jury. During that interview,
appellant repeatedly denied all allegations of sexual
misconduct or assault against J.S., telling the detective
that he thought of J.S. as a little brother.
the interview, Detective Mendenhall told appellant that J.S.
had been specific about what appellant did to him. Appellant
denied being naked with J.S., having J.S. bend over,
ejaculating in front of J.S., putting his penis in J.S.'s
mouth, or asking J.S. to lick his semen off of his penis.
When the detective asked appellant if J.S. was lying,
appellant responded, "Yes, sir."
Detective Mendenhall asked appellant if he wanted to tell him
about what had transpired with J.S. or to ask any questions,
appellant offered his version of events. Appellant explained
that J.S.'s allegations might have been prompted by a
phone conversation appellant had with his friend on November
12th or 13th that J.S. had overheard. According to appellant,
his friend called him on the phone and told him to watch a
YouTube video. Appellant said the video dealt with the
subject of pedophilia and rape, but was meant to be comical.
Appellant watched the video in his bedroom, conversing with
his friend while J.S. slept on the floor. Appellant claimed
that he initially believed that J.S. was asleep, but at one
point, he saw J.S. open one eye. Appellant told J.S. to go
back to sleep or he would tell his mother, and J.S. quickly
put the cover over his head. Appellant told the detective
that he suspected that J.S. may have heard the audio from the
YouTube video, as well as appellant speaking to his friend
about the video.
friend, however, told the detective that he never had any
such conversation with appellant. At trial, appellant's
friend testified that he did not have any phone conversations
with appellant in November 2013 and that he did not send
appellant any Internet links to pedophilia parodies or share
any jokes with appellant about men having sex with little
boys. He further stated that he had never seen a pedophilia
parody and was unfamiliar with what it was.
the State rested its case, appellant called three witnesses:
his aunt, his mother, and his stepfather. Appellant's
aunt testified that she had known J.S.'s mother for
almost twenty years, and had known J.S. since he was born.
She claimed that J.S. had a big imagination for his age. She
testified that she had expressed concern to J.S.'s mother
about his previous babysitters because J.S.'s mother did
not know these babysitters personally. Appellant's aunt
testified that she did not think that J.S. was safe with his
prior babysitters because of some of the things J.S. had
complained about. Appellant's aunt also testified that
she never had any concern with appellant being around her
mother, J.W., testified that she began babysitting J.S. after
his mother had experienced problems with another babysitter.
She claimed that J.S. would be asleep by the time appellant
came home each night between 9:00 p.m. and 10:00 p.m. She
further testified that she could "hear everything"
that happened in the apartment during the night, including
when someone was walking around the apartment and everything
that occurred in appellant's bedroom. Appellant's
mother also claimed that she did not allow appellant to shut
the door to his bedroom at night. She further testified that
she never had any concern about appellant being around small
children. She was shocked by the allegations against him, and
did not believe they were true.
stepfather also testified that he could hear what was going
on anywhere inside the apartment. Like appellant's
mother, appellant's stepfather testified that he never
had any concern leaving appellant with a small child, and was
shocked by the allegations against his stepson.
voir dire, appellant's counsel posed the following
question to the panel:
Is there anybody on this side and I ask you that your family
works for the police department or - I'm not talking
about your brother's sister's mother's cousin.
I'm talking about somebody you talk to.
later expanded the inquiry to also include close relatives
who work in other law enforcement agencies, such as the FBI.
appellant's counsel nor anyone else mentioned Detective
Mendenhall by name during voir dire. Approximately seventeen
panel members responded to defense counsel's inquiry,
including Juror No. 6. Juror No. 6 disclosed that his cousin
was a lieutenant at the Seabrook Police Department, but he
did not mention Detective Mendenhall.
a break in Detective Mendenhall's testimony, and outside
the presence of the jury, the trial judge informed the
parties that he had just learned that the detective knew two
of the jurors. The trial judge stated that he understood that
the detective knew one juror "apparently fairly well on
a personal basis" and the other juror not as well. The
trial judge ...