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Dwyer v. State

Court of Appeals of Texas, Fourth District, San Antonio

July 26, 2017

Edward James DWYER, Jr., Appellant
The STATE of Texas, Appellee

         From the 198th Judicial District Court, Kerr County, Texas Trial Court No. B14-568 Honorable M. Rex Emerson, Judge Presiding

          Rebeca C. Martinez, Patricia O. Alvarez, Luz Elena D. Chapa, Justice.


          Luz Elena D. Chapa, Justice.

         A jury convicted Edward James Dwyer, Jr. for continuous sexual abuse of a child and aggravated sexual assault of a child. On appeal, Dwyer argues there is legally insufficient evidence to support his conviction for continuous sexual abuse of a child; he was unable to intelligently exercise his peremptory strikes because he and his trial counsel were unable to view the venire panel while making peremptory strikes; and the trial court erroneously instructed the jury to disregard the dates alleged in the indictment, resulting in two convictions for the same offense in violation of the Double Jeopardy Clause. We affirm the trial court's judgment.

         Procedural Background

         A grand jury indicted Dwyer for the continuous sexual abuse of C.D., who is Dwyer's daughter. The indictment alleged Dwyer intentionally or knowingly touched C.D.'s genitals with his hand at least twice between January 15, 2011, and June 6, 2012. The grand jury also indicted Dwyer for aggravated sexual assault of C.D. The indictment alleged Dwyer intentionally and knowingly caused his finger to penetrate C.D.'s sexual organ on or about June 12, 2012. The indictment further alleged C.D. was under the age of fourteen at the time of the alleged offenses. Dwyer pled not guilty, and the case proceeded to a jury trial.

         The State presented the expert witness testimony of Carol Twiss, who testified about typical patterns of children's disclosure of sexual abuse; the testimony of Darin Trahan, an investigator with the Kerrville Police Department who interviewed Dwyer about C.D.'s outcry; and the testimony of C.D. The trial court also admitted a video recording of Dwyer's interview with Trahan. Dwyer testified in his defense. After closing arguments, the jury found Dwyer guilty of both offenses as charged in the indictment, and the trial court assessed Dwyer's punishment. The trial court imposed Dwyer's sentences, and Dwyer filed a timely notice of appeal.

         Legal Sufficiency

         Dwyer argues there is legally insufficient evidence that he "touched C.D. with the intent to arouse or gratify his sexual desire on more than one occasion over a period greater than thirty days." In reviewing the legal sufficiency of the evidence, we ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence "in the light most favorable to the verdict." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). "Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally, " and we must "defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quotation marks and citations omitted).

         The essential elements of continuous sexual assault of a child, as alleged in the indictment, are set out in section 21.02(b) of the Texas Penal Code. Tex. Penal Code Ann. § 21.02(b) (West Supp. 2016). Section 21.02(b) provides:

A person commits an offense if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

Id. (formatting modified). An "act of sexual abuse" includes touching any part of a child's genitals "with intent to arouse or gratify the sexual desire of any person." Id. §§ 21.01(2), 21.02(c)(2), 21.11(a)(1) (West 2011 & Supp. 2016). Dwyer challenges only the legal sufficiency of the evidence that he touched C.D.'s genitals "with the intent to arouse or gratify his sexual desire on more than one occasion over a period greater than thirty days."

         C.D. testified June 6, 2012, was a significant day in her life because her mother died suddenly that day. She testified Dwyer sexually abused her before her mother passed away. C.D. explained, "[Dwyer] would touch [her] inappropriately, obviously, and it would start off seeming like it was innocent and then escalate." She clarified, "[Dwyer] would touch [her] vagina in different ways each time" with "[h]is hands."

         C.D. testified Dwyer would touch her "typically when [she] was asleep" and "[she] would wake up from him touching [her]." C.D. testified she believed Dwyer's touching was "[d]eliberate." She stated the touching incidents occurred more than twice and "[s]ometimes" multiple times a week "[s]ince January of 2011." She also stated that once while touching her, "[Dwyer] said, 'Do you want what your body's telling me you want?'" C.D. described Dwyer's touching of her vagina as "[r]ubbing" for "[l]onger" than a couple of seconds and "[s]ometimes" more than a minute. C.D. testified she did not know whether Dwyer became aroused when he touched her.

         Dwyer testified he had no memory of some of the incidents about which C.D. testified, but "a typical situation" was when he and C.D. were watching television and C.D. would "plop her legs up into [his] lap . . . and [he]'d be sitting there rubbing her legs." Dwyer stated, "There were a couple of times that [he] got close to her vagina, but it was inadvertent, " and he would stop "sliding [his] hand up and down her leg" when "[he] would feel [his] fingers brush against fabric."[1]

         Dwyer testified he believed C.D. was generally truthful and was "not aware of any time that she has lied, " but C.D. was "[p]robably" unhappy that he would not allow her to leave home and live elsewhere. He also testified C.D. had been untruthful with the jury, but she was telling the truth when she said he gave her multiple massages while they were on the couch.

         Dwyer stated he was aroused "[o]nce or twice" when he was giving C.D. massages, but denied asking her, "Do you want what your body's telling me you want?" He also stated that, at times, he could smell her when she was "through with her period" and it would arouse him on rare occasions, but not fully. Dwyer testified that "within a day or so" after his interview with Investigator Trahan, he left Texas but was extradited back to the state.

         During his interview with Trahan, Dwyer initially stated he came close to touching C.D.'s private part a couple of times and "[his] fingers probably grazed that area, " but "[he could] not recall a time that has ever happened." Dwyer guessed it was possible that once while giving C.D. a back massage, his fingertip went underneath C.D.'s panties and he possibly touched C.D.'s vagina one or two times. Dwyer stated he "maybe" was "semi" aroused by massaging C.D. He described another incident when C.D. put her legs on him, and he rubbed her legs until he felt C.D.'s panties. He stated he "grazed her panty covered vulva a few times, " but only the "outer fold, " and he agreed with Trahan that he did not "go inside." Toward the end of the interview, Dwyer admitted C.D. was a "temptation" that he tried, but failed, to "fight." He also admitted he deliberately touched C.D.'s vagina "to see what she would do" and "[he] was kind of curious to see just how far she would let somebody go, " but stated it was "mostly to know if [he] had anything to worry about . . . as far as her being sexually active."

         In his brief, Dwyer acknowledges there is direct evidence that, on one occasion, he was aroused by touching C.D.'s genitals. He argues, however, that C.D. equivocated in her testimony about whether she thought Dwyer was aroused on other occasions when he was touching her. Dwyer further argues C.D. merely testified to a vague pattern of abuse. However, Dwyer stated during his interview and testified at trial he was occasionally aroused by C.D. and aroused when he massaged her. Dwyer testified he got aroused when giving C.D. massages "[o]nce or twice." He also admitted during his interview that he deliberately touched C.D.'s vagina. C.D. testified Dwyer rubbed her vagina on multiple occasions, sometimes for more than a minute. A rational jury could have inferred from the evidence that Dwyer deliberately touched part of C.D.'s genitals on more than one occasion to arouse or gratify his sexual desires. C.D.'s testimony shows these "touching" incidents started as early as January 2011, continued through June 6, 2012, and occurred on numerous occasions during some weeks. We therefore hold a rational jury could have found Dwyer had engaged in an act of sexual abuse with the intent to arouse or gratify his sexual desire on more than one occasion over a period of greater than thirty days. See Laster, 275 S.W.3d at 517.

         Inability to View the Venire Panel While Exercising Peremptory Strikes

         Dwyer argues the trial court erred by excusing the venire panel during the time the parties exercised their peremptory strikes. The day before trial, Dwyer filed a "motion to view the entire juror panel while making strikes." Dwyer requested that the trial court order all venire members "to remain in their assigned/numbered, seats/spaces, while [his] attorney is exercising or making his juror strikes." He argued he was entitled under article 1, section 10 of the Texas Constitution, and the Sixth Amendment of the U.S. Constitution, to view the venire panel while making his strikes.

         Before voir dire, Dwyer presented his motion to the trial court and reiterated the argument in his motion. Dwyer's counsel explained:

if the people aren't in the courtroom -- [Dwyer] might recognize somebody at a later point and if they're not in the courtroom, he can't recognize them to talk to me and advise me to be able to make a strike or give me an opinion about his strike.

         Counsel also asserted he cannot make the decision of who to strike "unless the people are here sitting in their numbered spot so [counsel] know[s] who they are." The trial court denied the motion.

         The parties conducted general voir dire and individual voir dire followed at the bench. At the conclusion of individual voir dire, the trial court gave the parties twenty minutes to make their peremptory strikes. Dwyer re-urged his motion and requested that the trial court order the venire panel to remain in the courtroom so ...

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