Court of Appeals of Texas, Second District, Fort Worth
JOSHUA C. HINES APPELLANT
THE STATE OF TEXAS STATE
CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY TRIAL COURT
LIVINGSTON, C.J.; SUDDERTH and KERR, JJ.
LIVINGSTON, CHIEF JUSTICE
convicted Joshua C. Hines of one count of continuous sexual
abuse of a child under the age of fourteen (Count One) and a
separate count of indecency with a child by contact, alleging
contact with the complainant's breast (Count Five). In
accordance with the jury's assessment, the trial court
sentenced appellant to forty-five years' confinement on
Count One and twenty years' confinement on Count Five.
Appellant brings two points on appeal, challenging the
sufficiency of the evidence to support his conviction on
Count One and the admission of outcry evidence relevant to
Count One. Because he does not challenge his conviction as to
Count Five (indecency by contact with the complainant's
breast), we affirm his conviction on Count Five. But because
we hold the evidence to be insufficient to support a
conviction on Count One, we reverse as to Count One and
remand for a new trial on the multiple lesser-included
offenses underlying that conviction: indecency with a child
and aggravated sexual assault.
every other weekend, Dorothy and her two siblings would go to
Father's apartment in Haltom City to spend time with him.
Dorothy first met appellant, a roommate of Father's, in
June 2014 when she was twelve years old and about to enter
seventh grade. Appellant was married to a woman who also
lived in the apartment. Appellant began purchasing Dorothy
numerous gifts, including clothes and a computer for school;
he also took Dorothy and her siblings shopping and bowling.
Sometime in August 2014, Dorothy went with appellant and his
wife on a trip to south Texas to pick up appellant's
daughter from a previous marriage and bring her back to
trip, Dorothy, appellant, and his wife spent the night in a
hotel room that had only one bed. Appellant lay in the middle
with Dorothy on one side and his wife on the other. Dorothy
reported that appellant reached over and grabbed her breast,
and she rolled away from him. Appellant's wife did not
know what had happened, and Dorothy did not mention the
touching the next day. Because they had car trouble, they
stayed there for a couple of days.
the south Texas trip, Dorothy and appellant became closer and
began to talk on the phone and to text each other with
increasing regularity. At some point, appellant texted
Dorothy a picture of himself in which he is exposing his
penis, and Dorothy sent him nude or semi-nude pictures of
herself at his request.
to Dorothy, appellant taught her to kiss when they returned
from south Texas. While at Father's apartment, Dorothy
and appellant would go into a spare bedroom away from the
other adults, where appellant would kiss Dorothy on the lips
and reach underneath her clothing to touch her breasts and
genitals. Although appellant asked Dorothy to perform oral
sex on him, she refused. On another occasion, appellant, his
daughter, and Dorothy were watching television late in the
night while Father and appellant's wife were asleep in
their respective bedrooms. Appellant began to touch
Dorothy's genitals over her shorts until she pushed his
hand away from her.
started for Dorothy on August 20, 2014 that year, and she
turned thirteen in September. On the night of September 23,
2014, Dorothy sneaked out of Mother's house and met
appellant at a nearby grocery store so they could have sex.
Appellant drove Dorothy to a shopping center where he
performed oral sex on her and vaginally penetrated her.
Afterward, appellant drove Dorothy back to Mother's home.
Mother had begun to notice that Dorothy's behavior was
changing for the worse. Dorothy frequently became angry, was
quiet and withdrawn, was fighting more with Mother, and was
performing poorly in school. After checking Dorothy's
cell phone, Mother found "1, 415 messages between
[Dorothy] and one specific phone number, many at 3:00 and
4:00 in the morning." Those messages were texts from
appellant's number to Dorothy's. After speaking with
Father, Mother learned, apparently for the first time, about
his living arrangement with appellant and that the phone
number from which Dorothy had received the 1, 415 texts
belonged to appellant. Mother also discovered that Dorothy
was using social media accounts on Facebook and Kik to
exchange messages with appellant.
making these discoveries, Mother went to Father's
apartment to confront appellant. In front of Dorothy and
Father, Mother instructed appellant to cease all contact with
Dorothy, or she would get the police involved. Appellant did
Mother's warning, appellant continued to try to contact
Dorothy. Mother took Dorothy's cell phone away on
September 26, 2014. Afterward, Mother saw a message from
appellant to Dorothy, saying that he was worried that Mother
would see pictures and texts that were on Dorothy's
phone. Mother called the Fort Worth Police Department, but
she "didn't have enough evidence at that time."
On September 29, 2014, Mother saw a message from Dorothy to
appellant stating that Dorothy was worried about being
pregnant and that she could not wait to get back into
appellant's bed. This message prompted Mother to file a
report with the Haltom City Police Department, which began an
Rick Isham with the Haltom City Police Department used a
computer program called Secure View to examine the contents
of Dorothy's cell phone. Although this program was able
to retrieve data of evidentiary value, the messages
transmitted over Kik and Facebook were not retrievable, nor
were messages that Dorothy had deleted before the police
seized the phone. Among the items of evidence Detective Isham
was able to retrieve were five or six pictures of a
partially-clothed Dorothy as well as a picture of appellant
of the investigation, Dorothy was taken to Alliance for
Children, where she spoke with Charity Henry, a child
forensic interviewer. In the interview with Henry, Dorothy
discussed having sex with appellant, including vaginal
intercourse and oral sex. Stacey Henley, a sexual assault
nurse examiner (SANE), conducted an examination of Dorothy
two days later at Cook Children's Medical Center. During
the examination, Dorothy told Henley that appellant had
penetrated her vagina with his penis and that he had
performed oral sex on her during their September 23, 2014
encounter in his car. An arrest warrant for aggravated sexual
assault of a child was issued for appellant on the same day.
Supporting Minimum Thirty-Day Period
first point, appellant challenges the sufficiency of the
evidence to support his conviction for continuous sexual
due-process review of the sufficiency of the evidence to
support a conviction, we view all of the evidence in the
light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789
(1979). This standard gives full play to the responsibility
of the trier of fact to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Id. at 319, 99 S.Ct.
at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex.
Crim. App.), cert. denied, 136 S.Ct. 198 (2015).
trier of fact is the sole judge of the weight and credibility
of the evidence. See Tex. Code Crim. Proc. Ann. art.
38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166,
170 (Tex. Crim. App. 2014). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the
weight and credibility of the evidence and substitute our
judgment for that of the factfinder. See Montgomery v.
State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence
when viewed in the light most favorable to the verdict.
Murray, 457 S.W.3d at 448. We must presume that the
factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Id. at
determine whether the State has met its burden under
Jackson to prove a defendant's guilt beyond a
reasonable doubt, we compare the elements of the crime as
defined by the hypothetically correct jury charge to the
evidence adduced at trial. Thomas v. State, 444
S.W.3d 4, 8 (Tex. Crim. App. 2014); see Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012)
("The essential elements of the crime are determined by
state law."). Such a 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
restrict the State's theories of liability, and
adequately describes the particular offense for which the
defendant was tried. Thomas, 444 S.W.3d at 8. The
law as authorized by the indictment means the statutory
elements of the charged offense as modified by the factual
details and legal theories contained in the charging
instrument. See id.; see also Rabb v.
State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)
("When the State pleads a specific element of a penal
offense that has statutory alternatives for that element, the
sufficiency of the evidence will be measured by the element
that was actually pleaded, and not any alternative statutory
standard of review is the same for direct and circumstantial
evidence cases; circumstantial evidence is as probative as
direct evidence in establishing guilt. Dobbs, 434
S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625
(Tex. Crim. App. 2014).
argues that the evidence is insufficient to support his
conviction for continuous sexual abuse because the offense
requires proof of two or more acts of sexual abuse separated
by at least thirty days, but the acts to which Dorothy
testified occurred less than thirty days apart. See
Michell v. State, 381 S.W.3d 554, 561 (Tex.
App.-Eastland 2012, no pet.) ("[A]lthough the exact
dates of the abuse need not be proven, the offense of
continuous sexual abuse of a child does require proof that
there were two or more acts of sexual abuse that occurred
during a period that was thirty or more days in
duration."); Smith v. State, 340 S.W.3d 41, 48
(Tex. App.-Houston [1st Dist.] 2011, no pet.) ("[T]he
offense of continuous sexual abuse of a child does require
proof that the last act of sexual abuse occur on at least the
29th day after the day of the first act.").
penal code provides that
(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the
person commits two or more acts of sexual abuse, regardless
of whether the acts of sexual abuse are committed against one
or more victims; and
(2) at the time of the commission of each of the acts of
sexual abuse, the actor is 17 years of age or older and the
victim is a child younger than 14 years of age.
(c) For purposes of this section, "act of sexual
abuse" means any act that is a violation of one or more
of the following penal laws:
. . . .
(2) indecency with a child under Section 21.11(a)(1), if the
actor committed the offense in a manner other than by
touching, including touching through clothing, the breast of
(3)sexual assault under Section 22.011;
(4)aggravated sexual assault under Section 22.021;
. . . .
(d) If a jury is the trier of fact, members of the jury are
not required to agree unanimously on which specific acts of
sexual abuse were committed by the defendant or the exact
date when those acts were committed. The jury must agree
unanimously that the defendant, during a period that is 30 or
more days in duration, committed two or more acts of sexual
Tex. Penal Code Ann. § 21.02(b)-(d) (West Supp. 2016).
According to the Texas Court of Criminal Appeals,
[t]he statutory language reflects that the Legislature
intended to permit one conviction for continuous sexual abuse
based on the repeated acts of sexual abuse that occur over an
extended period of time against a single complainant, even if
the jury lacks unanimity as to each of the particular sexual
acts or their time of occurrence, so long as the jury members