Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 204th Judicial District Court Dallas County,
Texas Trial Court Cause No. F15-12115-Q.
Justices Bridges, Myers, and Boatright
convicted appellant Dennis Garner of continuous sexual abuse
of a child younger than fourteen and assessed punishment at
life imprisonment. In three issues, appellant contends the
evidence is insufficient to support the conviction, the
magistrate should not have been allowed to preside over jury
selection, and the magistrate erred by limiting the
defense's ability to question the jury panel during voir
dire. We affirm.
presented at the guilt/innocence phase of the trial showed
January of 1980, appellant's then eleven-year-old
stepsister and her stepsister's eleven-year-old friend
accused appellant of molesting them. Appellant was convicted
of sexual abuse of a child as a result of this incident and
sentenced to two and one-half years in prison. In 1991,
appellant was convicted of aggravated sexual assault of a
child under the age of fourteen for molesting his biological
daughter, D.M., who was born in 1983. D.M.'s sister,
Ashleigh, was born in 1989. Ashleigh, D.M., their younger
sister, Natalie, and their older brother, Dennis, were
removed from appellant's--their biological
father's--household when Ashleigh was about four years of
age. Ashleigh had no further contact with appellant until she
reestablished contact with him via email when she was in her
time she reconnected with appellant, Ashleigh had two
children of her own: The complainant, K.B., who was born in
2008, and her brother, J.B. Ashleigh and appellant began
exchanging text messages and, over time, Ashleigh established
a relationship with her biological father and his wife, Pam,
celebrating birthdays and holidays together and spending more
time with them. Ashleigh testified that she was aware
appellant had sexually abused D.M. But she said she did not
know the details, nor did she want to know them, and that she
wanted to give appellant a second chance: "I just wanted
to reach out to him. I wanted--I wanted to know him again. I
wanted to give him a second chance from everything people
have ever told me growing up what he did. I wanted to know,
is this really the man?"
and J.B. started having weekend visits with appellant and Pam
at their Carrollton home in 2014. Ashleigh estimated there
were approximately ten such visits. Ashleigh testified that
Pam reassured her there was nothing to fear and that,
whenever her children stayed with them, Pam would be in
charge of bathing and dressing the children. Ashleigh
believed Pam would be protective of her children.
same time, Ashleigh was having financial problems, struggling
to pay $800 per month in rent. She mentioned to appellant and
Pam that she was having financial troubles, and they
suggested Ashleigh and her children could move in with them.
On December 15, 2014, Ashleigh, K.B., and J.B. moved in with
Pam and appellant.
had a job but no car, so Pam, and occasionally appellant,
would pick K.B. up from school. Pam was usually at the house
when K.B. got home from school but there were times,
according to Ashleigh's testimony, when appellant and
K.B. were at the house by themselves. Ashleigh recalled
appellant would play dress-up and "Barbies" with
K.B., and the two of them "just seemed to have a great
had received a unicorn pillow as a gift for Christmas in
2014. She kept the pillow on her bed and slept on it. J.B.,
meanwhile, had gone to live with his father on January 8,
2015; his departure meant that K.B. had a room to herself.
January or early February 2015, Ashleigh became involved with
a church in Carrollton, and she was attending various
membership-related programs on Wednesday and Thursday nights.
K.B. was at home with Pam and appellant when Ashleigh was at
church. K.B. had just turned six years of age, and she no
longer needed assistance dressing or bathing herself. But
Ashleigh recalled one occasion where she opened the bathroom
door to check on her daughter and found appellant sitting on
the toilet facing K.B., who was in the bathtub. Surprised,
Ashleigh asked: "What is going on? . . . There's no
need for you to be in here. She's old enough to bathe
herself." Appellant replied, "I just wanted to the
[sic] make sure that she was bathing herself correctly, that
she got clean." Ashleigh told appellant, "You
don't need to be in here, " and he left the
bathroom. Later, Ashleigh asked K.B., "[W]hy was Pawpaw
in here giving you a bath? . . . You're old enough to do
it yourself." K.B. responded, "But, Mama, he begged
me. I told him I could, but he begged me."
were times after this incident when appellant and Pam looked
after K.B. because Ashleigh was at work or attending church,
but Ashleigh's concerns did not subside. Ashleigh shared
these concerns with D.M., who suggested the best thing she
could do would be "to ask [K.B.] straight up." On
Friday, February 13, 2015, Ashleigh got off work early,
picked K.B. up from school, and then drove to D.M.'s
workplace. They walked over to a nearby pond and, while they
waited for D.M.'s shift to end, Ashleigh asked K.B.,
"Has Pawpaw touched you?" K.B. asked, "What do
you mean?" Ashleigh said, "Has Pawpaw touched your
privates before, " to which K.B. replied,
"Yes." Ashleigh asked K.B. to show her how
appellant had touched her, and K.B. "demonstrated it . .
. on the outside of her clothes down by her private
area." Ashleigh testified that she called Pam and told
her what K.B. had said. Pam's response was, "Do you
even believe her?"
and D.M. immediately took K.B. to the Carrollton Police
Department, where K.B. was interviewed by a detective. K.B.
was taken to the hospital for a sexual assault nurse
examination and Child Protective Services was notified. K.B.
was forensically interviewed at the Dallas Children's
testified that she later learned the sexual abuse had started
around "Christmas time, " and the last time the
abuse occurred was the night before K.B.'s outcry, on
February 12, 2015, when Ashleigh was at church. K.B.
testified that appellant touched her "bad spot"
beneath her underwear when she was in her room lying on a
unicorn pillow. During the sexual assault examination, K.B.
identified the "bad spot" by circling the vaginal
and genital area on a diagram of a small child.
jury ultimately convicted appellant of continuous sexual
abuse of a child under the age of fourteen and assessed
punishment at life imprisonment. Appellant filed a motion for
new trial that was overruled. This appeal followed.
Sufficiency of the Evidence
first issue, appellant contends the evidence was insufficient
to support the verdict. Appellant's argument is that the
evidence shows the sexual acts, if any, did not occur during
a period of thirty or more days in duration, and the evidence
was nonspecific regarding when the sexual acts occurred.
person commits the offense of continuous sexual abuse of a
child if, during a period that is thirty or more days in
duration, he commits two or more acts of sexual abuse and, at
the time of the commission of each act, he is seventeen years
of age or older and the victim is a child younger than
fourteen. Tex. Penal Code Ann. § 21.02(b) (West 2011).
Although the exact dates of the abuse need not be proven, the
offense does require proof that two or more acts of sexual
abuse occurred during a period of thirty days or more.
Baez v. State, 486 S.W.3d 592, 595 (Tex. App.--San
Antonio 2016, pet. ref'd); see Tex. Penal Code
Ann. § 21.02(d) (jury not required to unanimously agree
on which specific acts of sexual abuse were committed by
defendant or exact dates when those acts occurred, but jury
must agree unanimously that defendant, during period of
thirty or more days, committed two or more acts of sexual
determining the sufficiency of the evidence, the reviewing
court considers 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 offense beyond
a reasonable doubt. Acosta v. State, 429 S.W.3d 621,
624-25 (Tex. Crim. App. 2014). The jury is the sole judge of
the credibility and weight to attach to witness testimony.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
testimony of a child victim alone is sufficient to support a
conviction for continuous sexual abuse of a child.
See Tex. Code Crim. Proc. Ann. art. 38.07(a) (West
Supp. 2016); Lee v. State, 186 S.W.3d 649, 656 (Tex.
App.--Dallas 2006, pet. ref'd).
is sufficient evidence in the record to support the
jury's determination that appellant committed the charged
offense beyond a reasonable doubt. The evidence showed
appellant molested two eleven-year-old girls in 1980, one of
whom was his stepsister, and he later molested his biological
daughter, D.M., when she was only a child. Evidence also
showed it was appellant and his wife who suggested to
K.B.'s mother, Ashleigh, that she and K.B. move in with
them, and K.B. and her mother moved in on December 15, 2014.
There were times when appellant and K.B. were at home alone.
K.B. testified appellant touched her "bad spot, "
which she identified by circling the vaginal and genital area
on a diagram of a small child, beneath her underwear when she
was in her room lying on a unicorn pillow. Ashleigh testified
that K.B. had received a unicorn pillow as a Christmas gift
in 2014. Furthermore, Ashleigh testified K.B. did not need
help bathing or dressing herself, yet she once saw appellant
in the bathroom with K.B. while the child was bathing, and
K.B. told Ashleigh that appellant had begged her to allow him
to help her bathe. Ashleigh also testified that, after the
police started their investigation, she learned "[i]t
was around Christmas time that it started happening, "
and the last act of abuse occurred on Thursday, February 12,
2015, the day before K.B.'s outcry. This testimony, plus
the other evidence in the record, is sufficient to show that
the acts of sexual abuse occurred during a period of thirty
days or more. Deferring to the jury's determination of
the credibility of the witnesses and the weight to be given
their testimony, based on the cumulative force of all the
evidence when viewed in the light most favorable to the
verdict, and considering the reasonable inferences to be
drawn from that evidence, we conclude a rational trier of
fact could have found the essential elements of the offense
beyond a reasonable doubt. Appellant's first issue is
Magistrate Presiding Over Jury Selection
second issue, appellant argues the trial court erred by
allowing the ...