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Buxton v. State

Court of Appeals of Texas, First District

July 6, 2017

JUSTIN DAREN BUXTON, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 228th District Court Harris County, Texas Trial Court Case No. 1482081

          Panel consists of Justices Keyes, Higley, and Lloyd.

          OPINION ON REHEARING

          Evelyn V. Keyes Justice

         Appellant, 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.

         A jury 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.[1] 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.

         We affirm.

         Background

         K.T. 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.

         At one 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.

         In 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.

         One 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 note stated:

[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.

         B.S. contacted the police and then took C.T. to the Children's Assessment Center.

         Lisa 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."

         Dr. 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.

         In 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 acts.

         Appellant 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.

         Appellant 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.

         R.T., 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 Evidence 403.

         At 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 happened.

         On a 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 following exchange:

[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?
[C.T.]: 10.
[The State]: Do you remember the last time he did anything physical to you?
[C.T.]: No, ma'am.

         C.T. 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.

         C.T. 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.

         Jonna 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.

         R.T. 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 together.

         R.T. 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.

         Appellant 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.

         The 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.

         Sufficiency of Evidence

         In his 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 offense.

         A. Standard of Review

         When 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 that determination.").

         Circumstantial 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 ...


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