Appeal from the 228th District Court Harris County, Texas
Trial Court Case No. 1482081
consists of Justices Keyes, Higley, and Lloyd.
OPINION ON REHEARING
V. Keyes Justice
Justin Daren Buxton, moved for rehearing and en banc
reconsideration of our January 19, 2017 opinion in this case.
We deny the motion for rehearing, withdraw our opinion and
judgment dated January 19, 2017, and issue this opinion and
judgment in their stead. The disposition remains unchanged.
convicted appellant of the first-degree felony offense of
continuous sexual abuse of a child and assessed his
punishment at confinement for life without
parole. In four issues, appellant contends: (1)
the trial court erred in failing to quash the indictment,
which failed to allege specifically how appellant committed
aggravated sexual assault of a child and failed to allege the
requisite mens rea; (2) the trial court erroneously admitted
evidence that appellant committed uncharged acts of sexual
abuse against the complainant and the complainant's
sister, which violated his due process rights; (3) the
admission of extraneous uncharged acts of sexual abuse
against the complainant and her sister violated Rule of
Evidence 403; and (4) the State failed to present sufficient
evidence that multiple instances of abuse occurred over
thirty or more days, as required to convict a person of
continuous sexual abuse of a child.
dated appellant for several years. She has four children:
R.T., C.T., who is the complainant in this case, J.T., and
D.B. Her daughters, R.T., C.T., and J.T., all have different
fathers, and appellant is the father of D.B. K.T. lived with
her own father during the time that she was dating appellant,
and her daughters would spend the night with her or with
appellant, who lived with his mother, his other children, and
his nephew. Occasionally, K.T. spent the night at
appellant's house with her children, but her daughters
would also frequently spend the night at appellant's
house without her being present.
point, K.T. and appellant started having problems in their
relationship due to appellant's speaking with other
women. K.T. decided to look at appellant's laptop, and,
when she did, she found nude pictures of R.T. and C.T. K.T.
did not call the police, but she discussed the pictures with
one of her neighbors, who did call the police. The police
officers spoke with R.T. and C.T. about the pictures and
asked if anyone was touching them inappropriately, and both
girls responded "no." K.T. did not show the
officers the pictures because she believed appellant had
deleted them. K.T. continued to let her daughters spend the
night at appellant's house without her being present
after the incident with the pictures. K.T. acknowledged that
she had pleaded guilty to failure to report child abuse of
C.T. and that she was currently on deferred adjudication for
interfering with child custody.
2013, C.T., who was ten years old, began living with her
biological father, B.S., his wife, C.S., and their children.
B.S. had not seen C.T. for about five years before she
started living with his family. C.T. would stay with K.T. and
appellant every other weekend. B.S. noticed that, after she
would return from visiting K.T. and appellant, C.T. would be
angry and distant, and she would have an attitude with B.S.
and C.S. This behavior would cease within twenty-four hours
of her being back at B.S.'s house.
day, C.T. returned from staying with K.T. and appellant, and
she was "distant" and "snappy" at the
dinner table. B.S. told C.T. that he was tired of her
attitude, and he asked her if something was going on. C.T.
became very quiet and was unable to respond. C.S. suggested
that if C.T. could not speak about what was bothering her,
she perhaps could write it down, and C.T. did so. C.T.'s
[Appellant] made me touch his no-no. He touched me. He made
me touch him. He made me suck on his. He did it to me.
About-it stopped right before I started to see my dad again.
He had pictures of me on his computer.
contacted the police and then took C.T. to the Children's
Holcomb conducted C.T.'s forensic interview at the
Children's Assessment Center. During the interview, C.T.
disclosed that appellant had sexually abused her. C.T.
described the abuse more specifically than she had in her
note to B.S. C.T. also disclosed that she had witnessed
appellant abusing R.T., her older half-sister, that appellant
had taken pictures and videos of C.T. and R.T. together, and
that appellant had required the girls to "sexually act
on each other."
Marcella Donaruma conducted a medical examination of C.T. at
the Children's Assessment Center. C.T. told Dr. Donaruma
that her "stepdad was hurting [her], " and when Dr.
Donaruma asked what C.T.'s stepfather did to hurt her,
C.T. responded that he "would touch [her]
inappropriately." C.T. clarified that appellant forced
her to participate in oral, vaginal, and anal intercourse.
Dr. Donaruma asked C.T. how many times did this happen, and
she responded, "It happened a lot." C.T. told her,
"Well, it's happened since I was five, all the way
till now, when I was ten." C.T. told Dr. Donaruma that
the last time anything had happened was over spring break,
when appellant made C.T. take pictures of R.T. and made her
take "inappropriate pictures with [R.T.]." Dr.
Donaruma did not find any injuries on C.T. during her genital
examination, which was expected given the length of time
since the last instance of abuse.
October 2013, the State indicted appellant for the offense of
aggravated sexual assault of C.T., a child under the age of
fourteen. On September 18, 2015, ten days before trial, the
State indicted appellant for the offense of continuous sexual
abuse of a child. The indictment alleged:
The duly organized Grand Jury of Harris County, Texas,
presents in the District Court of Harris County, Texas, that
in Harris County, Texas, JUSTIN DAREN BUXTON, hereafter
styled the Defendant, heretofore on or about October 15, 2007
and continuing through October 15, 2012, did then and there
unlawfully, during a period of time thirty or more days in
duration, commit at least two acts of sexual abuse against a
child younger than fourteen years of age, including an act
constituting the offense of aggravated sexual assault of a
child, committed against [C.T.] on or about October 15, 2007,
and an act constituting the offense of aggravated sexual
assault of a child, committed against [C.T.] on or about
October 15, 2012, and the Defendant was at least seventeen
years of age at the time of the commission of each of those
moved to quash the indictment for continuous sexual abuse of
a child, arguing that it failed to allege all essential acts
necessary to constitute an offense of continuous sexual
abuse, that it was "so vague and indefinite" that a
judgment based on the indictment could not be used to bar a
subsequent prosecution of the same offense, that it failed to
give proper notice of the offense in violation of due
process, and that it failed to specify the manner and means
of commission of the offense of aggravated sexual assault of
a child. The trial court denied the motion to quash.
also filed a pretrial motion requesting a hearing on the
admissibility of any extraneous sexual offenses committed
against R.T. pursuant to Code of Criminal Procedure article
38.37, section 2. See Tex. Code Crim. Proc. Ann.
art. 38.37, § 2(b) (West Supp. 2016) (providing that,
notwithstanding Rule 404, evidence that defendant has
committed separate sexual offense against child other than
complainant in charged case may be admitted "for any
bearing the evidence has on relevant matters, including the
character of the defendant and acts performed in conformity
with the character of the defendant"). At a pretrial
hearing, the State presented the testimony of R.T. and Jonna
Hitchcock, R.T.'s child advocate. Hitchcock testified
that in April 2014, R.T. disclosed to her that she had been
sexually abused by appellant. R.T. told Hitchcock that the
abuse began when she was five or six and happened "every
night" that she was at appellant's house.
who was fourteen at the time, testified at the hearing that
appellant would touch her inappropriately. When asked by the
prosecutor to describe a time that she "remember[ed]
best that he did something inappropriate, " R.T.
testified that appellant made her have vaginal intercourse
when she was eleven or twelve. She testified that she was six
or seven the first time appellant touched her vagina, and
when she was older, appellant made her engage in oral and
vaginal intercourse. On cross-examination at this hearing,
R.T. agreed that she first had a forensic interview with Lisa
Holcomb in September 2013, and R.T. did not tell Holcomb that
appellant had touched her inappropriately. At her second
forensic interview, which occurred after she made a
disclosure of sexual abuse to Hitchcock, R.T. told Holcomb
that she had been abused. The trial court ruled that the
testimony concerning appellant's actions against R.T. was
"adequate to support a finding by the jury that
[appellant] committed the separate offense [against R.T.]
beyond a reasonable doubt" and was therefore admissible
pursuant to Code of Criminal Procedure article 38.37, section
2. The trial court also ruled that the prejudicial effect of
this evidence did not substantially outweigh its probative
value and therefore the evidence did not violate Rule of
trial, C.T. testified that she was six or seven the first
time appellant did something inappropriate to her. She stated
that appellant drove an eighteen-wheeler truck, and she would
occasionally go on trips with him. On one occasion, appellant
told C.T. to take her clothes off and use a wipe to clean her
vaginal area. C.T. laid down in the sleeping area of the
truck's cab, and appellant made her touch his penis.
Appellant rubbed his penis on C.T.'s vagina and then
cleaned her off, and she put her clothes back on. Appellant
told C.T. that he would hurt her if she told anyone what had
later occasion, C.T. was spending the night at
appellant's house while K.T. was not present. C.T. was in
appellant's bedroom, and appellant made her take off her
clothes, touch his penis, and sit on him, with his penis
contacting her vagina. The prosecutor asked C.T. how often
this behavior occurred, and C.T. responded, "I would say
sometimes it would be every night. Sometimes it would be
every other night. Sometimes it would be kind of spaced out,
like once a week or so." The prosecutor and C.T. had the
[The State]: That's starting from-you said from the time
you were maybe five or six, right?
[C.T.]: Yes, ma'am.
[The State]: And when was the last time that it happened? How
old were you?
[C.T.]: Well, last time it happened, it wasn't physical
contact. He took pictures of me.
[The State]: Okay. Do you remember how old you were the last
time that he did anything physical to you?
[C.T.]: Yes, ma'am.
[The State]: How old were you?
[The State]: Do you remember the last time he did anything
physical to you?
[C.T.]: No, ma'am.
testified that the abuse sometimes happened several times a
week and that she was not able to distinguish among all the
different instances. C.T. also testified that appellant once
made her engage in anal intercourse and that he also made her
perform oral sex on him and he performed oral sex on her.
stated that sometimes R.T. would be in the same room while
appellant abused her. When asked what C.T. saw appellant do
to R.T., C.T. responded, "Basically, the same thing he
did to me, like when she sat and put her mouth on his private
area." C.T. testified that appellant would take
photographs and videos of her and R.T. performing sexual acts
and that he would make R.T. and C.T. perform sexual acts on
each other. C.T. testified that K.T. once found out about the
pictures that appellant had, but when the police showed up,
appellant instructed C.T. and R.T. to lie about the pictures.
Hitchcock testified at trial that she had been assigned as
the child advocate for R.T., J.T., and D.B. in December 2013.
The three children were all living in separate homes, and
C.T., who had made her outcry by this point, was living with
her biological father and his wife and was not in CPS
custody. In April 2014, Hitchcock received a phone call from
R.T.'s stepmother, who told her that R.T. had made some
disclosures of abuse to her friend at school, and her friend
had told her mother, who contacted R.T.'s stepmother.
Hitchcock and R.T.'s stepmother told R.T.'s friend to
encourage R.T. to tell an adult about what had happened, and
R.T. decided to speak to Hitchcock. R.T., while her friend
was present, disclosed to Hitchcock that appellant had
sexually abused her.
testified that she was six or seven the first time appellant
did something inappropriate to her and that this lasted until
she was twelve. The first times he touched her, he would put
his hand on her vagina. Appellant would sometimes make her
touch his penis with her hand or her mouth, and he would also
perform oral sex on her and make her engage in anal
intercourse. R.T. also described an incident that occurred at
appellant's house when she was eleven. She was in
appellant's bedroom, and he told her to take off her
clothes, and he took off his clothes and made her engage in
vaginal intercourse. R.T. stated that by the time she was ten
or eleven, the abuse would occur almost every night. R.T. saw
appellant do the same things to C.T. that he would do to her.
She testified that appellant made her and C.T. touch each
other sexually and that he would take pictures of them
acknowledged that when she first spoke to Lisa Holcomb in
September 2013, after C.T. had made her outcry, she did not
tell Holcomb what had happened, and instead she told Holcomb
that C.T. was making the allegations up. R.T. stated that she
did this "[b]ecause I was scared. I just felt like I
shouldn't have told." In May 2014, R.T. had a second
interview with Holcomb, and that time she disclosed
appellant's abuse against her.
called his mother, Lucinda Buxton, to testify on his behalf.
Lucinda testified that the following people lived in or
stayed at her house on a regular basis: herself, appellant,
K.T., R.T., C.T., J.T. D.B., appellant's two other
children, and two of appellant's nephews. Lucinda
testified that her house had 1250 square feet of living space
and had three bedrooms. She had a bedroom, appellant had a
bedroom, and one of appellant's nephews had a bedroom.
She stated that her policy was that all doors in the house
had to remain open with the exception of her bedroom door and
the bathroom door if someone was in there. Lucinda never
observed any fear or reluctance by R.T. or C.T. when they
would interact with appellant.
jury found appellant guilty of the offense of continuous
sexual abuse of a child and assessed his punishment at
confinement for life. Appellant filed a motion in arrest of
judgment, which the trial court denied. This appeal followed.
fourth issue, appellant contends that the State failed to
present sufficient evidence that the acts of sexual abuse
against C.T. occurred during a period of thirty or more days
in duration, as required to support a conviction of
continuous sexual abuse of a child. Appellant acknowledges
that the evidence is sufficient to support a conviction for
aggravated sexual assault of a child and requests that the
judgment be reformed to reflect a conviction for that
Standard of Review
reviewing the sufficiency of the evidence, we view all of the
evidence in the light most favorable to the verdict to
determine whether any rational fact finder could have found
the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d
854, 859 (Tex. Crim. App. 2011). The jurors are the exclusive
judges of the facts and the weight to be given to the
testimony. Bartlett v. State, 270 S.W.3d 147, 150
(Tex. Crim. App. 2008). We may not re-evaluate the weight and
credibility of the evidence or substitute our judgment for
that of the fact finder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost
complete deference to the jury's credibility
determinations. See Lancon v. State, 253 S.W.3d 699,
705 (Tex. Crim. App. 2008). We resolve any inconsistencies in
the evidence in favor of the verdict. Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000);
see also Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007) ("When the record supports conflicting
inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to
evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to
establish guilt. Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011) (quoting Clayton, 235
S.W.3d at 778). "Each fact need not point directly and
independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating ...