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Caston v. State

Court of Appeals of Texas, First District

August 3, 2017


         On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1319352

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.


          Evelyn V. Keyes Justice.

         A jury convicted appellant, Sammie Caston, of the first-degree felony offense of continuous sexual abuse of a child and assessed his punishment at confinement for life.[1] In two issues, appellant contends that (1) Code of Criminal Procedure article 38.37, section 2(b), which permits the introduction of evidence of a defendant's extraneous bad acts involving children other than the complainant in the charged case, violates due process and is unconstitutional, and (2) the State failed to present sufficient evidence that he was at least seventeen years old at the time of the charged offense.

         We affirm.


         A. Factual Background

         L.J. first met appellant when she was twelve or thirteen and appellant was around fifteen, and they started dating. They drifted apart, and L.J. had four children with another man, including the complainant T.H., who was born in 2003. L.J. and appellant reconnected in 2010, and they started dating again. Appellant moved in with L.J. and her children, and they lived in two different apartments during the time they were dating-the first on North Houston Rosslyn Road and the second on West Sunforest. L.J. testified that they moved to the West Sunforest address in December 2010. The apartment on West Sunforest had two bedrooms: L.J.'s children shared the master bedroom, and L.J. and appellant shared the smaller bedroom. The apartment had one bathroom, which had entrances from the hall and the master bedroom.

         On the evening of March 6, 2011, L.J. was sitting at her computer while one of her sons and T.H., who was eight years old at the time, were asleep in their bedroom. Appellant announced that he was going to use the restroom. When he had not returned to the living room after about forty-five minutes, L.J. began to feel as though something was not right and she got up to investigate. Standing in the hallway, L.J. could see the shadow of feet moving from the children's bedroom into the bathroom. L.J. knocked on the bathroom door and called appellant's name, but he did not answer. L.J. knelt down and looked under the bathroom door, and she could see appellant's slippers sitting perfectly still in front of the toilet. L.J. started banging on the door, and when appellant finally answered, he was sitting on the toilet. L.J. questioned him about why he did not answer when she called his name and told him that she had seen him walking from the children's bedroom into the bathroom. Appellant told L.J. that he had been in the bedroom because T.H. had had a bad dream. L.J. did not believe appellant, but she decided to wait and talk to T.H. before she accused him of anything.

         The next morning, L.J. drove T.H. and her son to school. Her son got out of the car and headed into the building, but when T.H. started to climb out, L.J. asked her to stay inside. L.J. drove around the corner, parked her car, and told T.H. that she felt uncomfortable about some things that had happened the previous night. L.J. asked T.H. if appellant had ever touched her in an inappropriate way, and T.H. started crying and said that appellant had been inappropriately touching her. T.H. told L.J. that appellant had taken her into the closet of the master bedroom, undressed her, and touched her vagina with his fingers and his mouth. T.H. also said that appellant had told her that "he would have to wait until she [got] a little bit older because she was too tight."

         L.J. contacted the police that day, and she also took T.H. to be examined at Texas Children's Hospital. The trial court admitted a copy of T.H.'s medical records. These records reflected that appellant lived with L.J. and T.H., that he was born in 1977, and that he was L.J.'s "live-in boyfriend of 6 months." T.H. reported to medical personnel that on the night before, appellant had "touched her private with his hand and tried to get on top of her." She also reported that appellant had "forced her to perform oral sex on him and tried to put his private in her private on multiple occasions[, ] and it ha[d] been going on since he moved in with [her] mother."

         T.H. was thirteen years old at the time of appellant's trial. T.H. testified that appellant abused her on more than one occasion, and she described three specific instances. She testified that, on one occasion, appellant woke her up, took her into her closet, and started touching her vagina with his fingers. Appellant told her that she "was too tight down there, so he [had] to wait until [she got] older." On another occasion, T.H. was in her mother's bedroom looking for a phone charger when she found a picture of a woman performing oral sex on a man. When appellant came into the room, T.H. asked him what the people in the picture were doing, and he said, "I'll show you." Appellant then forced T.H. to perform oral sex on him. T.H. also testified that when her family was living in a different apartment, appellant came into the bedroom where she was sleeping with two of her siblings and attempted to have anal intercourse with her. T.H. could not provide specific dates for when each of these acts occurred, nor could she state how much time passed between each act, other than to say that they occurred on different days and they started when appellant moved in with her family.

         B. Admission of Extraneous Sexual Offense

         Pursuant to Code of Criminal Procedure article 38.37, section 2(b), the State sought to introduce evidence during the guilt-innocence phase that appellant had also sexually abused his daughter, S.C., who was twelve years old at the time of appellant's trial. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b) (West Supp. 2016). Article 38.37, section 2(b) provides that, in trials for certain offenses including continuous sexual abuse of a child, notwithstanding Rule of Evidence 404, evidence that the defendant has committed a separate sexual offense against a child other than the complainant in the 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." Id. Defense counsel objected to any evidence admitted under this statute, arguing that the statute violated due process and due course of law guarantees and that any testimony concerning an extraneous offense against S.C. also violated Rule of Evidence 403.

         As required by the statute, the trial court held a hearing to determine whether the evidence likely to be admitted at trial concerning this separate offense against S.C. would be adequate to support a jury finding that the defendant committed the separate offense beyond a reasonable doubt. See id. art. 38.37, § 2-a. The trial court heard testimony from S.C. and her mother, N.M., and made a finding on the record that testimony concerning appellant's alleged abuse of S.C. was admissible under article 38.37, section 2.

         Before the jury, N.M. testified that she started dating appellant in 1997 or 1998 and they had two children together, including twelve-year-old S.C. She stated that appellant was born on June 13, 1977, and that he was around twenty-five years old when S.C. was born in 2003. N.M. testified that appellant's defense counsel contacted her in 2013-two years after appellant was arrested for abusing T.H.- and asked if S.C. would testify as a witness in support of appellant. N.M. discussed this with S.C., who informed her that she could not testify in appellant's favor because he "had raped her, too."

         S.C. testified that appellant touched her inappropriately on more than one occasion and that the abuse occurred when she was between the ages of seven and ten. S.C. testified that, late at night, when her mother and younger brother were asleep in another bed in the room, appellant would climb in bed with her and touch her vagina, both over and under her clothes. She remembered that appellant did this on four occasions over different periods of time. S.C. stated that appellant abused her on other occasions, but she could not remember all the times that it happened. She did not tell anyone about what appellant had done to her until her mother asked her if she wanted to testify in favor of appellant in the charged case.

         Ultimately, the jury found appellant guilty of committing continuous sexual abuse of T.H., and it assessed his punishment at confinement for life. This appeal followed.

         Sufficiency of Evidence

         In his second issue, appellant contends that the State failed to present sufficient evidence that he was at least seventeen years old at the time of the charged offense, as required by statute.

         A. Stand ...

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