Court of Appeals of Texas, Second District, Fort Worth
THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
three points, Appellant James Alan Horton appeals his
conviction for indecency with a child by contact.
See Tex. Penal Code Ann. § 21.11(a)(1) (West
2011). We affirm.
is the father of Andrea,  who was twelve years old at the
time of the incident that gives rise to the allegations here.
After Appellant and Andrea's mother, Jane, divorced in
2009, Andrea and her siblings spent every other weekend at
the paternal grandparents' home, where Appellant also
lived. When they stayed there, Andrea would often sleep in a
bed with Appellant. According to Andrea, her brothers would
sleep in other rooms.
testified that in January 2015, when she was 12 years old,
she awakened to her father's hand rubbing her sexual
organ over her clothes. Too scared to do anything, Andrea
waited until Appellant stopped-approximately five minutes
later, by Andrea's estimation-and then got out of bed and
went to the living room, where she fell back to sleep. Andrea
estimated that she went to the living room at "around
6:30 or 7:00" that morning.
to Andrea, after she awoke that morning and before she told
anyone else what had happened, Appellant approached her,
apologized, and said he "didn't mean to do it."
Later that day Andrea told her grandmother, Kay, what had
happened and, according to Andrea, Kay cried and instructed
Andrea to "keep [her] distance."
also testified that Andrea approached her that day, crying,
and told her that Appellant had touched her and that it had
made Andrea feel "very uncomfortable." According to
Kay, she tried to assure Andrea that she should not worry,
that she had done the right thing, and that it would be okay.
When Kay confronted Appellant about Andrea's accusation,
he told her that he had accidentally touched Andrea in his
to Jane, Appellant called her that evening and told her that
"he had touched [Andrea] accidentally." Jane
immediately met Andrea's grandfather and took possession
of Andrea and her siblings. According to Jane, Andrea was
crying "hysterically" at the time she picked her
up. Kay testified to the contrary, that when Andrea left the
house, she did not want to leave and pleaded with Appellant
to let her stay. But her grandfather testified that Andrea
wanted to go home to her mother.
called the police that night.
took the stand in his own defense and testified that he
believed that Andrea had told the truth when she said that he
had touched her, but he denied that he had done so
intentionally. Appellant claimed that when he went to bed the
night before, both Andrea and her brother were in his bed
watching a movie. He testified that he fell asleep before the
movie ended, and when he woke up around 7:00 that morning,
both children were still in his bed. Andrea was lying next to
him, and according to Appellant, he reached over and touched
her leg and then fell back asleep. A few minutes later, he
woke up again when he felt his hand fall off of Andrea's
leg. According to Appellant, at that point Andrea "was
getting up, and it was pretty quick, " and as she was
going to the door, she turned around and looked at him, and
"[he] knew something was wrong. [He] could tell."
Appellant testified that he noticed that Andrea appeared to
be "uncomfortable" with him that morning, and at
some point, Kay relayed to him what Andrea had told her about
to Appellant, after his conversation with Kay, he approached
Andrea and said, "[Andrea], I just want you to know
I'm sorry. It was an accident. I was asleep." Andrea
was crying at the time, but she said, "Dad, it's
okay." Appellant also admitted that he called Jane that
evening and told her what had happened.
County Sheriff's Office Detective Jerome Adams
interviewed Jane and Andrea. Afterwards, he arranged for a
forensic interview of Andrea. Natalie Davis, investigator for
Child Protective Services, conducted the interview while
Detective Adams watched it on a closed-circuit T.V. Detective
Adams characterized Andrea's demeanor during the
interview as "nervous." He observed that "she
had her legs folded up" as she sat in the chair but that
"once she started talking about the incident, she kind
of broke down and started crying." Based on what he
heard, Detective Adams thought Andrea "sounded like she
was charged with indecency with a child. See Tex.
Penal Code Ann. § 21.11(a)(1). The jury found Appellant
guilty and sentenced him to two years' confinement.
first point, Appellant argues that the trial court abused its
discretion in responding to the jury's request for a
rereading of testimony. In his second and third points,
Appellant argues that certain court costs imposed in
accordance with the code of criminal procedure and the local
government code are unconstitutional.
Response to jury note
its deliberations, the jury sent several notes to the trial
court. The jury's tenth handwritten note stated,
"Could we get testimony from [Andrea] and [Appellant]
regarding the description of the apology[?] Did either witness The jurors are
disputing what [Appellant] apologized for[.]"
The court reporter prepared an excerpt of the testimony from
these two witnesses that appeared to respond to the
jury's inquiry. Appellant takes issue with the trial
court's decision to redact certain portions of his
testimony before providing the excerpt to the jury. The
testimony provided to the jury appears below, except that the
lines appearing in strike-through font represent the portions
that were excluded by the trial court:
Q. At that time, we're talking about -- let's say 2
o'clock in the afternoon. Had you said anything to [Jane]
at that point about what had happened before?
A. No, sir.
Q. After you had a conversation with your mom --
A. And I did that intentionally even though I felt
Q. Wait for a question, okay?
A. Yes, sir.
Q. After you had a conversation with your mom, did you have a
conversation with [Andrea]?
A. Yes, sir.
Q. What did you say to [Andrea]?
A. I said, "[Andrea], I just want you to know, I'm
sorry. It was an accident. I ...