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Garner v. State

Court of Appeals of Texas, Fifth District, Dallas

May 10, 2017

DENNIS GARNER, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-12115-Q.

          Before Justices Bridges, Myers, and Boatright

          OPINION

          LANA MYERS JUSTICE

         A jury 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.

         Background

         Evidence presented at the guilt/innocence phase of the trial showed the following:

         In 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 early twenties.

         By the 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, [1] 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?"

         K.B. 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.

         At this 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.

         Ashleigh 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 connection."

         K.B. 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.

         In late 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."

         There 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?"

         Ashleigh 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 Advocacy Center.

         Ashleigh 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.

         The 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.

         Discussion

         1. Sufficiency of the Evidence

         In his 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.

         A 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 abuse).

         In 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).

         There 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 overruled.

         2. Magistrate Presiding Over Jury Selection

         In his second issue, appellant argues the trial court erred by allowing the ...


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