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Owings v. State

Court of Criminal Appeals of Texas

November 1, 2017

RICHARD CHARLES OWINGS, JR., Appellant
v.
THE STATE OF TEXAS

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

          RICHARDSON, J., delivered the opinion of the Court in which KELLER, P.J., and KEASLER, HERVEY, ALCALA, NEWELL, KEEL, and WALKER, JJ., joined.

          OPINION

          RICHARDSON, J.

         Appellant, Richard Charles Owings, Jr., was convicted by a jury of aggravated sexual assault of a child[1] and sentenced to thirty years in prison. The First Court of Appeals reversed Appellant's conviction, holding that "the trial court committed harmful constitutional error in failing to require the State to make an election of the incident upon which it relied for conviction."[2] We agree that the trial court committed constitutional error by failing to require the State to make an election of the incident upon which it relied for conviction. However, we disagree with the appellate court's harm analysis. We hold that, under these particular facts, the trial court's erroneous failure to require the State to make an election was harmless. We reverse and remand the case to the First Court of Appeals to address Appellant's remaining point of error.[3]

         BACKGROUND

         Appellant was the step-grandfather of the complainant, K.M.-he was previously married to K.M.'s maternal grandmother ("Grammy"). Two years after Grammy divorced Appellant, nine-year-old K.M. disclosed to Grammy that Appellant had sexually abused her on numerous occasions. Appellant was arrested and charged with aggravated sexual assault of a child under the age of fourteen. The indictment alleged only one incident of sexual abuse in the form of genital-to-genital contact:

Richard Charles Owings, Jr., hereafter styled the Defendant, heretofore on or about January 1, 2010, did then and there unlawfully, intentionally and knowingly cause the sexual organ of [K.M.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the sexual organ of the Defendant.

         Grammy testified at Appellant's trial that she and Appellant were married for seven years-from 2003 to 2011. She said that her daughter, M.M., and granddaughter, K.M., lived with them off and on during that time. Grammy stated that she and K.M. were very close, and even when K.M. was not living with them K.M. would often spend the night. Grammy said that she first became suspicious of Appellant when he would, on occasion, spend time with K.M. in their bedroom behind locked doors. Grammy would knock on the door, and it would take a few minutes for Appellant to come open the door. Grammy remembered one Thanksgiving when K.M. came to the dinner table after she had been in their bedroom with Appellant, and she had a "terrified" look on her face.

         K.M.'s mother, M.M., also testified that she remembered specific times when Appellant and K.M. were in his bedroom with the door locked. These incidents caused her to be suspicious of Appellant.

         The outcry witness was Lisa Holcomb, a forensic interviewer with the Children's Assessment Center in Harris County. The following excerpt came from the trial transcript of Ms. Holcomb's testimony when she was asked to describe in detail the statements that K.M. conveyed to her about the alleged sexual abuse:

She said because my Pawpaw, he did a horrible thing to me. His name is Richard. How is he related to you? He's my Grammy['s] husband. He would take me when my grandma would be at work. It's before my mom and dad got together. He would take me into the bedroom, he would lock the door and get out his knife and put it by the bed. He would take my clothes off. He told me if I tried to run away, he would stab me with his knife. If I told anybody, he would hurt other little girls. She said, I asked her to tell me about the knife. She said it was like a pocketknife. He always kept it by the desk. It was silver and open. She said, he was sitting on the bed; and he told me to sit on the bed.
I said, tell me everything that happened. And she said he would push me on the bed and he would get undressed, he would do horrible things. He would get on top of me and start going up and down. He took everything off of her. I asked her where her body was. She said she fell face first. I asked what part of your body was he on? She said, he was on my private area. And that was the front of her body. . . . She said, he would turn me over. I said what part of his body-what part of his body is on your private area? And she said, his private area.
And I asked, what would he be doing while he was on you like that? She said, going up and down. And I asked what his private area was doing? She said up and down. On top of her body, she didn't like it at all. His private area, she said was hard and his hands were everywhere. And she described by motion that he was touching her at her chest at that time, and he would tell her just-he would just tell her not to move. I asked her if she was able to do anything or say anything, and she shook her head no. I asked would anything happen with his private area? She shook her head, no.
I said did you ever feel or see anything coming out of it at all? She said there was stuff coming out [of] it, and it would be on the bed. When Grammy come [sic] home, she would bang on the door and tell him to unlock the door, and he would hurry up and try to hide it with a blanket and clothes. I asked her how much it would happen? She said a lot. It happened since I was four. He stopped at eight. When she was six and seven, she explained that they moved out [but] that they were still visiting Grammy a lot.
She also disclosed another incident. She related to a time when she was staying in her Uncle Ty's room, and that her Grammy and her mom went to another room. They were spending the night. Her Pawpaw came in there with his knife, and at that time, he made her do something different, which she explained was that he took my head and he made me put my mouth on his derriere. He walked in the room, put his knife on the desk, took off his clothes and hers. After that he went up and down on me, then he made me put my mouth on his private area. And I asked where her body, where [sic] when uncle walked in, and she described his was on the pillow, I was right by his private. He was making me put my mouth on his private. And she said he took my head and was jamming on it, and at that time she demonstrated by motioning her hand to the back of her head. She said the room was very dark. The TV was on, and she explained that he hid their clothes somewhere. And when my uncle came in, he had just walked in there, looked at them, closed the door and walked away. And Pawpaw hurried up and put his clothes on. She said she was about five or six at that time.
* * *
Then she described the last incident; she was detailed as saying that this was the time that he had gotten kicked out of his apartment . . . .

         K.M. testified that Appellant's sexual abuse of her was ongoing. Although the court of appeals viewed K.M.'s testimony as describing four single separate incidents, we read K.M.'s testimony differently. The first "incident" K.M. talked about, which was consistent with Lisa Holcomb's testimony, was actually a description of what consistently happened on numerous occasions when Appellant took her into his bedroom and locked the door. K.M. used words describing how Appellant "would do" the same thing each time: "He would take my clothes off" (she said she "would usually wear pants"); "he'd take [his clothes] off;" he would "put me on the bed;" "he would get on top of me;" and "stick his penis in my vagina." K.M. also described how Appellant "would put the knife on the night stand" and threaten to hurt her or someone else if she told anyone: "Once he was on top of me before he stuck his penis in my vagina, he would show me the knife." K.M. described how she "would just lay there." When asked "if Grammy was home at all during this time, " K.M. responded by saying, "sometimes when it, when she would come home, that's when it stopped because there was a lock on the door, so he would always lock it and so she would bang on the door." K.M. emphasized that he "always" locked the door. When Grammy would "bang on the door, " K.M. said that Appellant "would hurry up and put his clothes on and have me put my clothes on."

         K.M. then mentioned three other specific incidents when Appellant did "the same thing" to her that he always did-take off her clothes, take off his clothes, and put his penis in her vagina. But on those other three instances, he also forced her to perform oral sex on him. The first instance she described occurred "in Grammy's room, " when Appellant did "the same thing that he did the first time, but this time he had [K.M.] put [her] mouth on his penis . . . . First, he would do the same thing as he would do, then all of a sudden he forced my mouth on his penis." Another time, she was in her Uncle Ty's room. She said she thought it "might have been the only time someone was there at the house, and [she] was there in [her] uncle's room, and [she] was watching a movie, and it was dark outside, and [Appellant] came in and he did, he did both things to [her]." She described how, on that occasion in her uncle's bedroom, Appellant took off her nightgown, he got on top of her, and he put his penis in her vagina, and then after that he put his penis in her mouth. K.M. then described a third distinct occasion when Appellant took her to his father's house. He and Grammy were divorced. He picked K.M. up from her mother's apartment, purportedly to take her to an arcade. Instead, Appellant took K.M. to his father's house. She described how he "took [her] to his bedroom;" and "stuck his penis in [her] vagina, and he put [her] mouth on his penis."

         K.M. testified that, when asked a few times by her mother and grandmother-who were both clearly suspicious of Appellant's behavior with K.M.-if anyone was touching her inappropriately, K.M. would deny that anything out of the ordinary was going on. K.M. said she did this because she was afraid of Appellant and what he might do to her. K.M. said that it was only after Appellant moved out of Grammy's house that she felt safe enough to disclose the sexual abuse to Grammy.

         After the State rested, defense counsel requested that the trial court force the State to elect which "one" of the "four" incidents they will be relying on to convict. The trial court denied the election request.

         Appellant then testified in his defense. He denied committing any sexual abuse against K.M.:

Q. Did you ever have occasion to do anything sexually inappropriate [to K.M.]?
A. No.
Q. Did anything like that ever occur when [K.M.] was five in your bedroom?
A. Absolutely not.
Q. Did you ever point a knife at her?
A. Never.
* * *
Q. Did you threaten to harm other children?
A. Never.
Q. Did you threaten to harm any animals?
A. I would never do that.
Q. [K.M.] also described another occasion when the same thing happened; do you remember her talking about that?
A. Yes, I do.
Q. Did that ever happen?
A. No.
Q. Do you know what time, date, place, season she was even referring to?
A. Not really.
Q. She also talked about an experience in Tyler's room. Did you ever do anything inappropriate to [K.M.] in Tyler's room?
A. No.
Q. On any occasion?
A. No, sir.
* * *
Q. And you heard an occasion where [K.M.] told us about what happened at your father's house. Did anything happen between you and [K.M.] in your father's house?
A. It did not.

         On cross examination, Appellant theorized as to why K.M. might have been lying about being sexually abused by Appellant:

A. What I'm saying is apparently when she's been asked the same question by her grandmother repeatedly and her response isn't good enough, eventually she's going to say something else. So she went ahead and complied; and I think it built up from there. And bless her heart, she's in a position now, she's talked herself in a position she has to defend.
Q. So, you're not saying [K.M.] is lying, you're just saying [her grandmother] has been coaching her?
A. Yes, [her grandmother] has encouraged her to say this. . . . She's getting a lot of positive attention. . . . She's getting a lot of care and attention. She's getting a lot of special ...

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