Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 47th District Court Randall County, Texas
Trial Court No. 26, 096-A; Honorable Dan L. Schaap, Presiding
QUINN, C.J., and PIRTLE and PARKER, JJ.
Patrick A. Pirtle Justice
David Blake Turner, appeals his two jury convictions for the
offense of continuous sexual abuse,  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.
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
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.
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).
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
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.
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.
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 ...