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Hines v. State

Court of Appeals of Texas, Second District, Fort Worth

May 4, 2017

JOSHUA C. HINES APPELLANT
v.
THE STATE OF TEXAS STATE

         FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1431879R

          PANEL: LIVINGSTON, C.J.; SUDDERTH and KERR, JJ.

          OPINION

          TERRIE LIVINGSTON, CHIEF JUSTICE

         A jury 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.

         Background

         About every other weekend, Dorothy[1] 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 Haltom City.

         On the 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.

         Following 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.

         According 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.

         School 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.

         Meanwhile, 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.

         After 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 not respond.

         Despite 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 investigation.

         Detective 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 naked.

         As part 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.

         Evidence Supporting Minimum Thirty-Day Period

         In his first point, appellant challenges the sufficiency of the evidence to support his conviction for continuous sexual abuse.

         Standard of Review

         In our 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).

         The 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 448-49.

         To 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 elements.").

         The 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).

         Analysis

         Appellant 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.").

         The 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 a child;
(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 abuse.

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 ...

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