Nathaniel Boyd v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00116-CR
___________________________
NATHANIEL BOYD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 462nd District Court
Denton County, Texas
Trial Court No. F18-3034-367
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Introduction
The trial court convicted appellant Nathaniel Markell Boyd of three counts of
aggravated sexual assault and two counts of indecency with a child and sentenced him
to 40 years in prison on each count of sexual assault and 10 and 5 years in prison on
the indecency counts. On appeal, Boyd complains that the evidence was insufficient
on all counts and his sentences were disproportionate. Because the evidence was
sufficient to uphold his convictions and because Boyd failed to preserve his
sentencing issue, we affirm the trial court’s judgment.
Factual Background
1. Boyd moves in with A.R. and her mother
In January 2018, Boyd moved into his then-girlfriend’s apartment with her
daughter, A.R., who was eleven years old. The apartment had two bedrooms and one
bathroom; A.R. had a bedroom to herself. Boyd and A.R.’s mother worked together
at a local warehouse and their relationship soon turned sour. Boyd and A.R. also had a
difficult relationship, and she openly disliked like him. Boyd and A.R’s mother
decided to end the relationship, but before he could officially move out, Boyd was
arrested in April 2018 on an out-of-state warrant and spent several weeks in jail. Upon
his release in early May that same year, A.R.’s mother allowed Boyd to temporarily
return to the apartment while he looked for alternative housing.
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2. A.R.’s allegations
One Saturday in May, Boyd and A.R. were alone in the apartment while A.R.’s
mother was at work. A.R. testified that she awoke that morning, and Boyd told her to
do the dishes as instructed by her mother, but she just “looked at him crazy.” Later in
the day, as they both sat at a table in the apartment, Boyd told her “very inappropriate
stories” about an ex-girlfriend’s daughter who “had big boobs and [a] big butt and
stuff” and who had been molested by another boyfriend. A.R. explained that Boyd
also stated that he knew she was not wearing any underwear under her clothes, which
made her uncomfortable.
At some point they moved to the living room and sat on separate couches, and
A.R. stated that Boyd asked her to access pornography on the television using an
internet browser. Specifically, Boyd instructed her to search for videos using the
words “[s]tepdad and stepdaughter, black.” According to A.R., this search returned a
video of a stepdad and stepdaughter having intercourse. While the video played, Boyd
played with his “private area”1 by moving his hands up and down. A.R. stated that she
saw his “private part” and that it was “black.” Boyd then told her “to come over there
and bounce on it,” but she refused.
A.R. explained that Boyd told her he was going to take a shower but never did.
She then moved to a different couch in the living room and started looking at the
1
A.R. defined “private area” as the body part used by boys to “pee.”
3
Facebook profile of another man on one of her mother’s phones. Boyd sat on the
living room floor in view of the phone and stated that his “stuff [was] bigger than
that” and again showed A.R. his “private part.” A.R. testified that she went to her
bedroom and lay on her bed. Boyd then entered her bedroom and lay down behind
her under the covers facing the back of her head. A.R. then felt Boyd’s “private area”
rubbing against both her “butt” and “googoo”2 through her clothing. A.R. said this
felt “very [i]nappropriate” and “scary.”
A.R. said Boyd then exited her bedroom but instructed her to remove her pants
and say, toward the door, “I’m ready.” A.R. removed her pants and underwear and
Boyd re-entered the room wearing only a white shirt; she could see his “boy private
part.” According to A.R., they lay back down on the bed in the same position, with
Boyd behind her again rubbing his “stuff” against her “googoo” and “booty.” A.R.
said this time she felt “something else . . . very painful” on her “googoo.” She testified
that his “private part” touched her “booty hole” and the outside of her “googoo.” She
thought he tried to put his penis inside where she pees but did not know for sure
because she was not “looking down there.” She reiterated that it hurt when Boyd did
this.
According to A.R., Boyd then licked the inside of her “googoo” while she lay
on the bed on her back. To A.R., this felt “[v]ery uncomfortable” and “[v]ery
A.R. indicated that she refers to her private area used to poop as the “butt”
2
and her area used to pee as the “googoo.”
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inappropriate.” She stated that, after Boyd finished licking her “googoo,” she thought
it felt “dry.” Boyd then lay beside A.R. and started “jerking off” by moving his hands
up and down on his “private parts.” A.R. said that Boyd stayed in the room after this
to “clean up his mess” with a white towel. She figured that he was cleaning up
“sperm” because something white had come out. A.R. testified that Boyd did not
touch her “googoo” with his hand or fingers.
Using her cell phone, A.R. then contacted her mother and brother to tell them
what Boyd had done to her. She said that Boyd begged her not to tell anyone and
then grabbed her phone. In response, A.R. took a knife from the kitchen drawer,
pointed it at Boyd, and demanded that he give her the phone back. Boyd complied,
and A.R. ran barefoot from the apartment, where she soon encountered a mailman
who stayed with her while she called 9-1-1.
3. The investigation; evidence at trial
Upon observing A.R. soon after these events, A.R.’s mother and the
responding officer described her demeanor as “hysterical,” “crying really bad,” and
“terrified.”
A.R. was examined by a sexual-assault nurse examiner less than three hours
after the alleged events; the examination included the taking of DNA swabs from
A.R.’s mouth, vagina, and anus. A.R. recounted to the examiner that Boyd had
“humped [her]”; exposed his “private part” to her; “started putting his private part,
penis, in [her] googoo”; “put his mouth with his tongue on [her] private part”; and
5
“touched [her] with his hand on [her] private.” Also, while the pornography was
playing in the living room, Boyd had said to A.R.: “[D]o you want to touch it? Don’t
be scared.” The examiner did not observe any injuries to A.R.’s vagina or anus and
testified that it would have been uncommon to find such injuries.
A.R. was forensically interviewed three days after the alleged events. The
interviewer testified that A.R. was “shaky” and “nervous” at the interview. She also
recalled that A.R. had provided ample sensory details about the events, which lent
credibility to A.R.’s account and that she had no concerns that A.R. had been coached
about what to say at the interview.
The State’s DNA experts testified that no male DNA was recovered from
A.R.’s oral swab. But, using multiple testing methods, they were able to conclude
from A.R.’s anal and vaginal swabs that (1) both swabs contained male DNA; (2) the
DNA from the anal swab was “164 quadrillion times more likely” to be from A.R.
and Boyd than A.R. and another unknown person; (3) the male DNA obtained from
the vaginal swab provided only a partial DNA profile but was from a single male
source; (4) the partial DNA profile obtained from the vaginal swab was consistent
with that of Boyd’s DNA profile; and (5) Boyd could not be excluded as the
contributor of the DNA from the vaginal swab.
The parties agreed to admit recordings of the 9-1-1 call and forensic interview
along with copies of various police reports into evidence. In the 9-1-1 call, A.R. told
the dispatcher that Boyd had touched her vagina with his hand. At the forensic
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interview, A.R. detailed that Boyd had tried to put his “private” into both her “butt”
and “private,” and that he also licked inside her “private part.” A.R. reported to a
responding police officer that Boyd had touched her vagina with his hand and
“attempted to penetrate her vagina with his penis.” Additionally, an investigator
reported that A.R. had recounted to him that Boyd “pulled his thing out” in front of
her, “hump[ed] her butt,” and “did penetrate her vagina with his penis.” Another
investigator searched the history of the television search engine and observed searches
for terms such as “porn” and “black+stepdaughter” conducted less than two hours
before A.R. called 9-1-1.
Procedural Background
The State charged Boyd in a single indictment with three counts of aggravated
sexual assault of a child younger than 14 years old and two counts of indecency with a
child younger than 17 years old. See Tex. Penal Code Ann. §§ 21.021, 21.11. The State
alleged that Boyd (1) caused A.R.’s sexual organ to contact his sexual organ; (2) caused
A.R.’s anus to contact his sexual organ; (3) caused A.R.’s sexual organ to contact his
mouth; (4) exposed his genitals knowing A.R. was present, with the intent to arouse
or gratify his sexual desire; and (5) engaged in sexual contact with A.R. by touching
her genitals, with the intent to arouse or gratify his sexual desire. See id. §§21.021,
21.11.
After a bench trial, the trial court found Boyd guilty on all five counts and
sentenced him to prison for 40 years for each of counts one through three, 10 years
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for count four, and 20 years for count five, with all sentences to be served
concurrently. Boyd filed but later withdrew a motion for new trial; this appeal
followed.
Sufficiency of the Evidence
Boyd first argues that the evidence was insufficient to support the trial court’s
verdict on all indicted counts. We disagree.
1. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Queeman, 520 S.W.3d at 622. The factfinder alone judges the evidence’s weight
and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622.
2. Relevant Law
A person commits aggravated sexual assault if he “intentionally or
knowingly . . . causes the sexual organ of a child [younger than 14 years old] to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor”
or “causes the anus of a child [younger than 14 years old] to contact the mouth, anus,
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or sexual organ of another person, including the actor.” Tex. Penal Code. Ann.
§§ 22.021(a)(1)(B)(iii),(iv), (a)(2)(B). Section 22.021 is a conduct-oriented offense
under which “each separately described conduct constitutes a separate statutory
offense.” Vick v. State, 991 S.W.2d 830, 832–33 (Tex. Crim. App. 1999).
A person commits indecency with a child under 17 years old when, “with the
intent to arouse or gratify [his] sexual desire,” the person (1) “engages in sexual
contact with the child” or (2) “exposes the person’s anus or any part of the person’s
genitals, knowing the child is present.” Tex. Penal Code Ann. §§ 21.11(a)(1), (a)(2)(A),
(c). “Sexual contact” includes “any touching by a person, including touching through
clothing, of the anus, breast, or any part of the genitals of a child.” 3 Id. § 21.11(c). We
can infer a defendant’s specific intent to arouse or gratify his sexual desire of a person
“from the defendant’s conduct, his remarks[,] and all surrounding circumstances.”
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
A child victim’s testimony alone can sufficiently support convictions for
aggravated sexual assault and indecency with a child. See Tex. Code Crim. Proc. Ann.
art. 38.07(b)(1) (providing that requirement that victim inform another person within
one year does not apply to a victim who is seventeen years of age or younger at the
See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977) (explaining that
3
“genitals” includes not only the vagina but also “the vulva which immediately
surrounds the vagina” and that evidence is sufficient to show the touching of genitals
even when a child victim uses language different from the statutory language to
describe the part of the body contacted).
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time of the offense); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth
2007, no pet.).
Discussion
Boyd contends that A.R. fabricated her allegations because she disliked him
and wanted him out of the apartment. He argues that the evidence is insufficient to
support his convictions on all counts—specifically that the record is devoid of
evidence proving that penetration occurred4—and also that the State’s DNA evidence
raised reasonable doubt sufficient for acquittal on appeal. Viewing the entire record in
the light most favorable to the verdict, we hold that the evidence was sufficient to
support each element of the offenses for which Boyd was indicted. 5 See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789.
1. A.R.’s testimony of aggravated sexual assault
Boyd was indicted on three counts of aggravated sexual assault for causing
contact between his penis and A.R.’s anus and vagina and between his mouth and
A.R.’s vagina. A.R. testified to multiple instances of contact between Boyd’s penis and
her anus and vagina. First, A.R. testified that she felt Boyd’s “private area” touch her
We reject Boyd’s argument regarding lack of penetration evidence because he
4
was not indicted for penetrating A.R. but for causing contact with her as prohibited
under sections 22.021 and 21.11. See Tex. Penal Code Ann. §§ 22.021, 21.11.
5
Boyd does not dispute that A.R. was 11 years old at the time of the alleged
events.
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“googoo” and “butt” while she and Boyd lay on her bed and she was clothed.6
Second, A.R. testified that, after her pants were removed, Boyd’s “private part”
touched her “booty hole” and “googoo,” which was painful. Regarding count three,
A.R. stated that Boyd licked the inside of her “googoo” while she lay on her back in
bed without her pants on.
2. A.R.’s testimony of indecency with a child
Boyd was also indicted for indecency both by exposure and by contact. Tex.
Penal Code Ann. §§ 21.11(a)(1), (a)(2)(A). A.R. testified that Boyd exposed his penis
to her on multiple occasions. First, while sitting on the couch in the living room, Boyd
moved his hand up and down on his “private area” within A.R.’s view; she noted that
it appeared “black.” Next, while A.R. looked at another man’s Facebook profile, Boyd
showed A.R. his “private part” and told her that his “stuff [was] bigger than that.”
Finally, A.R. saw Boyd’s “boy private part” again when Boyd returned to her
bedroom wearing only a white shirt.
Though A.R. testified at trial that Boyd never touched her vagina with his hand,
the record contains multiple statements by A.R. to the contrary. She told the 9-1-1
dispatcher, a responding officer, and the sexual-assault nurse examiner that Boyd had,
in fact, touched her vagina with his hand. We will presume that the trial court resolved
6
Texas courts have repeatedly held that “contact” under section 22.021 does
not require skin-to-skin contact and can occur through clothing. IslasMartinez v. State,
452 S.W.3d 874, 877–78 (Tex. App.—Dallas 2014, pet. ref’d).
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this conflict in the evidence in favor of the verdict and defer to that resolution. See
Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015).
Further, a rational factfinder could have found from Boyd’s conduct, his
remarks, and the surrounding circumstances that he intended to arouse or gratify his
sexual desire when he exposed his penis to A.R. and touched her vagina. See McKenzie,
617 S.W.2d at 216. The record shows that Boyd made comments about another
young girl’s breasts and “butt” while relating that she had been molested; told A.R.
that he knew she was not wearing underwear; played pornographic videos involving a
stepdad and stepdaughter in front of A.R.; masturbated in front of A.R. on at least
two occasions; and asked A.R. if she wanted to “touch” and “bounce on” his penis.
A.R. also noted that it hurt when Boyd attempted to put his penis in her vagina and
that she saw him cleaning up “white stuff” that had come out after he masturbated
next to her on her bed.
3. Corroborating evidence
While A.R.’s testimony alone was enough to support the verdict, see Connell, 233
S.W.3d at 466, other evidence tended to corroborate her testimony:
• many details of A.R.’s account remained consistent through the 9-1-1 call,
reports from police, the sexual-assault nurse examiner, the forensic interviewer,
and her testimony at trial;
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• A.R’s demeanor directly after the events was described as “hysterical,” “crying
really bad,” and “terrified”;
• a search history on the television revealed searches for “porn” and
“black+stepdaughter” conducted less than two hours before A.R. called 9-1-1;
• A.R. provided ample sensory details to the forensic interviewer, who had no
concerns that A.R. had been coached about what to say at the interview;
• the DNA taken from A.R.’s anal swab was “164 quadrillion times more likely”
to be from A.R. and Boyd than A.R. and another unknown person; and
• the partial DNA profile obtained from the vaginal swab was consistent with
that of Boyd’s DNA profile, and he could not be excluded as its contributor.
Thus, having viewed all of the evidence in the light most favorable to the
verdict, we hold that a rational trier of fact could have found the evidence was
sufficient to establish the elements of all three aggravated sexual assault counts and
both indecency with a child counts beyond a reasonable doubt. See Tex. Penal Code
Ann. §§ 21.021, 22.11; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule Boyd’s
first issue.
Disproportionate Sentencing
Boyd next complains that the evidence was insufficient to support the trial
court’s sentence imposing imprisonment on all counts, making the sentence
“disproportionate and onerous.” Boyd failed to preserve this argument.
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To preserve a disproportionate-sentence complaint for appellate review, a
defendant must present to the trial court a timely request, objection, or motion stating
the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a); see Rhoades v. State,
934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding cruel-and-unusual complaint
waived because defendant presented his argument for first time on appeal); Kim v.
State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding that
complaint of disproportionate sentence not preserved where defendant failed to raise
the issue at the time sentence was imposed or in a motion for new trial). Here, as in
Kim, Boyd did not raise the disproportionate-sentence issue with the trial court—
neither when the sentence was imposed nor in a motion for new trial. 7 Accordingly,
he has failed to preserve this issue for our review.
Conclusion
Having overruled Boyd’s first issue and having held that he failed to preserve
his second issue, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 20, 2022
7
Though Boyd did file a motion for new trial, the motion did not argue this
issue, and Boyd withdrew it before a trial court ruling in any event.
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