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Qualls v. State

Court of Appeals of Texas, Fifth District, Dallas

December 20, 2019

ROBERT BERNARD QUALLS, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F17-18778-I

          Before Justices Whitehill, Schenck, and Richter [1]

          MEMORANDUM OPINION

          MARTIN RICHTER JUSTICE

         Robert Bernard Qualls appeals his conviction for continuous sexual abuse of M.M., a child under fourteen years of age. In six issues, appellant argues the evidence is insufficient to support his conviction, the trial court erred in admitting certain evidence, and the trial court erred in denying his motion for a mistrial. We affirm the trial court's judgment.

         BACKGROUND

         M.M. was thirteen when she testified at trial that appellant initially seemed like a good father when he and Mother married in 2012. However, when she was eight years old, appellant began sexually abusing her in their home while Mother was at work. She described the first instance of abuse when appellant touched her vagina, both over and underneath her clothing, and performed oral sex on her. She said that appellant progressed to vaginally penetrating her with his penis and described two specific instances of such in detail. She also recalled that appellant made her touch his penis with her hands and perform oral sex on him more than once. M.M. testified the abuse occurred about once a week for four years, a fact that was uncontroverted at trial, until she made an outcry to Mother. During her testimony, M.M. identified appellant in open court and described him as her abuser. After hearing this and other evidence, the jury found appellant guilty and assessed punishment at life imprisonment.

         SUFFICIENCY OF THE EVIDENCE

         In his first issue, appellant argues that the evidence is insufficient to prove he sexually abused M.M. and that the alleged abuse occurred two or more times during a period of at least thirty days.

         When an appellant challenges the legal sufficiency of the evidence, we consider the entire record in the light most favorable to the verdict to determine whether any rational trier of fact could have found the appellant guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. To convict a person of continuous sexual abuse of a child under the age of fourteen, the State must prove beyond a reasonable doubt that (1) during a period of thirty days or more, (2) the defendant committed two or more "acts of sexual abuse," and (3) at the time of each act, the defendant was at least seventeen years old or older and the victim was a child younger than fourteen years of age. See Tex. Penal Code Ann. § 21.02(b). "Act of sexual abuse" includes causing the penetration of the mouth or sexual organ of a child and causing the sexual organ of a child to contact the mouth of another person, including the actor. Tex. Penal Code Ann. § 21.02(c), 22.011(a)(2). A jury need not agree unanimously on the exact date the acts were committed; it is sufficient if the jury agrees unanimously that the defendant committed two or more acts of sexual abuse during a span of thirty or more days. Tex. Penal Code Ann. § 21.02(d). The uncorroborated testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. Tex. Code Crim. Proc. art. 38.07 (a); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.). A child victim is not required to specify the exact dates of the abuse. See Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006).

         Here, M.M. identified appellant as her stepfather and abuser in her outcry and at trial. She testified that appellant sexually abused her once a week for four years and described three specific instances where he caused her mouth to be penetrated by his penis, caused her vagina to be penetrated by his penis, and caused his mouth to contact her vagina. This evidence was sufficient to show that appellant sexually abused her and that he committed two or more acts of sexual abuse during a period of thirty days or more. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b); Garner, 523 S.W.3d at 271. After examining all of the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found appellant guilty of the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We resolve appellant's first issue against him.

         ADMISSION OF EVIDENCE

         In his second, third, fourth, and fifth issues, appellant argues that the trial court abused its discretion when it admitted (1) a jail call he contends was unauthenticated, (2) the testimony of undisclosed witnesses, and (3) the expert testimony of a witness he argues was not qualified as an expert. A trial court's ruling on the admission of evidence is reviewed for an abuse of discretion and will not be disturbed if it is within the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).

          I. Authentication of evidence

         In his second issue, appellant contends that the trial court abused its discretion when it admitted a jail call because the State ...


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