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Turner v. State

Court of Appeals of Texas, Seventh District, Amarillo

April 2, 2019


          On Appeal from the 47th District Court Randall County, Texas Trial Court No. 26, 096-A; Honorable Dan L. Schaap, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.


          Patrick A. Pirtle Justice

         Appellant, David Blake Turner, appeals his two jury convictions for the offense of continuous sexual abuse, [1] and the trial court imposed concurrent sentences of forty-five years. By two issues, Appellant contends (1) the evidence was insufficient to establish the alleged acts of sexual abuse occurred over the time span required by section 21.02 of the Texas Penal Code and (2) the court's charge failed to properly instruct the jury. We affirm.


         Appellant was charged by indictment with two counts of continuous sexual abuse-one count as to each of two victims, S.E.H. and S.H. (twin sisters)-alleged to have been committed from on or about June 1, 2013 until August 1, 2013. The indictment alleged that, in each instance, the victim was a child younger than fourteen years of age and that each offense was committed by engaging in two or more acts of sexual abuse, as to each victim, committed in three alternative ways: (1) by touching the genitals of each victim, (2) by causing the penetration of each victim's sexual organ by Appellant's finger, and (3) by causing the sexual organ of the victim to contact Appellant's sexual organ. Appellant pleaded not guilty to both counts and his case was tried to a jury. After the jury returned a verdict of guilty as to each count, Appellant elected to have the trial court assess his punishment. The trial court assessed his sentence at forty-five years in prison for each count and did not assess a fine. The sentences were ordered to be served concurrently.

         Appellant argues the evidence is insufficient to support his conviction for continuous sexual abuse because "there was no more than a mere modicum of evidence that at least two acts of sexual abuse occurred over an interval spanning 30 days or more." He also argues that he was egregiously harmed because the charge of the court did not require the jury to find that he committed two or more acts of sexual abuse over a period of at least thirty days.

         Standard of Review

         The only standard recognized by the Texas Court of Criminal Appeals in reviewing the sufficiency of the evidence necessary to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to support a conviction, this court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 623 (Tex. Crim. App. 2017).

         The fact finder is the sole judge of the credibility of the witnesses and the weight to be given to their testimonies, and a reviewing court must defer to those determinations and not usurp the fact finder's role by substituting its judgment for that of the jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)). In doing so, we give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Faced with a record supporting contradicting inferences, a reviewing court must presume that the fact finder resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Queeman, 520 S.W.3d at 622. Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Jenkins, 493 S.W.3d at 599. "The duty of the reviewing court is simply to ensure that the evidence presented supports the jury's verdict and that the State has presented a legally sufficient case of the offense charged." Queeman, 520 S.W.3d at 621. "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 320).

         Legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of guilt, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240. In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, regardless of whether that evidence was properly or improperly admitted. Jenkins, 493 S.W.3d at 599; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

         In reviewing the sufficiency of the evidence in this case, we are mindful that in the prosecution of an offense under chapter 21 of the Texas Penal Code, the uncorroborated testimony of a child sexual abuse victim alone is sufficient to support a conviction for either the offense of continuous sexual abuse or the underlying predicate offenses of indecency with a child or sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (West Supp. 2018); Chasco v. State, No. 07-17-00243-CR, 2019 Tex.App. LEXIS 234, at *6 (Tex. App.-Amarillo Jan. 15, 2019, pet. filed March 18, 2019) (mem. op., not designated for publication); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.). Courts give wide latitude to the testimony of child sexual abuse victims; see Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990), and a child victim's description of what happened and when it occurred need not be expressed with the same level of sophistication and detail that an adult might use. Soto v. State, 267 S.W.3d 327, 332 (Tex. App.-Corpus Christi 2008, no pet.). Furthermore, corroboration of the child victim's testimony by medical or physical evidence is not required. Id. The mens rea and requisite specific intent of the accused can be inferred from the defendant's conduct, his remarks, and the circumstances surrounding the commission of the offense. McKenzie v . State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).

         Continuous Sexual Abuse

         A person commits the offense of continuous sexual abuse if (1) during a period that is thirty or more days in duration, (2) the person commits two or more acts of "sexual abuse," and (3) at the time of the commission of each act of sexual abuse, the actor is seventeen years of age or older, and the victim is a child younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b)(1), (2) (West Supp. 2018). For purposes of this offense, an "act of sexual abuse" includes (a) touching, including touching through clothing, of the genitals of the child victim, if committed with the intent to arouse or gratify the sexual desire of any person, (b) causing the penetration of the victim's sexual organ by any means, and (3) causing the sexual organ of the victim to contact the sexual ...

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