in the Guardianship of Bonnie Bee Brawley, an Incapacitated Person ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00046-CR
Glennie Darnell Jennings § From the 371st District Court
§ of Tarrant County (1236163D)
v. § December 28, 2012
§ Opinion by Chief Justice Livingston
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Chief Justice Terrie Livingston
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00046-CR
GLENNIE DARNELL JENNINGS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In his only point, appellant Glennie Darnell Jennings argues that the
evidence is insufficient to support his conviction for indecency with a child by
contact.2 We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011).
2
Background Facts
In 2011, a grand jury indicted appellant with aggravated sexual assault of a
child. Appellant’s indictment alleged that he had knowingly caused the
penetration of the female sexual organ of a child who was younger than fourteen
years old. Appellant pled not guilty. During the trial, appellant’s counsel asked
the trial court to include in the jury charge a question about indecency with a child
by contact as a lesser-included offense.3 The trial court granted this request.
After hearing evidence and arguments from the parties, the jury convicted
appellant of indecency with a child by contact. The jury then listened to appellant
testify in the punishment phase of his trial and assessed seventeen years’
confinement. The trial court sentenced appellant accordingly, and he brought
this appeal.
Evidentiary Sufficiency
Appellant contends only that the evidence is insufficient to support his
conviction. In our due-process review of the sufficiency of the evidence to
support a conviction, we view all of the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900,
3
The court of criminal appeals has held that ―indecency with a child is a
lesser-included offense of aggravated sexual assault of a child when both
offenses are predicated on the same act.‖ Evans v. State, 299 S.W.3d 138, 143
(Tex. Crim. App. 2009).
3
903 (Tex. Crim. App. 2012). This standard gives full play to the responsibility of
the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.
App. 2011).
To obtain a conviction for indecency with a child by contact under the facts
of this case, the State was required to prove that with the intent to arouse or
gratify the sexual desire of any person, appellant touched any part of a child’s
genitals. See Tex. Penal Code Ann. § 21.11(a)(1), (c)(1); Connell v. State, 233
S.W.3d 460, 465–66 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.). ―A
complainant’s testimony alone is sufficient to support a conviction for indecency
with a child.‖ Connell, 233 S.W.3d at 466; see Bazanes v. State, 310 S.W.3d 32,
40 (Tex. App.—Fort Worth 2010, pet. ref’d) (citing Garcia v. State, 563 S.W.2d
925, 928 (Tex. Crim. App. [Panel Op.] 1978)). Also, ―the jury is free to accept or
reject any or all of the evidence of either party, and any or all of the testimony of
any witness.‖ Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth
2006, no pet.) (citing Hernandez v. State, 161 S.W.3d 491, 500 (Tex. Crim. App.
2005)).
The record contains testimony from several witnesses, including the victim,
supporting the jury’s finding of appellant’s guilt. Specifically, the evidence shows
that Erica and Kevin, who are married, have one child together, Quintessa, who
4
was born in April 2007 and was four years old during the trial.4 In 2008, Erica,
Kevin, and Quintessa lived in an Arlington apartment complex, and appellant
lived next door. They all became friendly with each other; appellant occasionally
played games, watched television, and smoked marijuana with Erica and Kevin,
and appellant also developed a relationship with Quintessa, who referred to him
as her ―grandfather.‖5 According to Kevin, appellant saw him, Erica, and
Quintessa two to three times a week, and appellant often gave Quintessa toys or
candy.6 Erica, Kevin, and Quintessa eventually moved to a different apartment,
but they maintained contact with appellant. Appellant came over to the
apartment only upon an invitation.
According to Erica and Kevin, on the evening of November 3, 2010,
appellant planned to come to the apartment to play dominos. Although
Quintessa was normally excited when appellant came over, according to Kevin,
she was not happy about his coming there that day. In fact, Kevin testified that
when Quintessa learned that appellant was coming that evening, she ―was pretty
4
To protect the identity of the victim, we will refer to some of the witnesses
by using pseudonyms. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Crim. App. [Panel Op.] 1982).
5
Erica said that appellant never had duties to care for Quintessa or to potty
train her, but she testified that sometimes, appellant played with Quintessa, had
her sit on his lap, bounced her, and read her books.
6
Erica testified that kids often went to appellant’s apartment because he
gave them toys and snacks.
5
distraught.‖ After appellant arrived, Quintessa did not speak to him like she
usually had.
Later on that night, according to Erica, Quintessa went to use the restroom
and stayed there for an extended period of time. Erica stopped playing dominos
to check on Quintessa, and in the bathroom, Erica saw Quintessa ―with her pants
down around her ankles trying to look at . . . her bottom area.‖ Erica asked
Quintessa what was wrong, and Quintessa said that her ―butt hurt.‖ While
gesturing with her hands to her front genital area and her bottom, Quintessa then
told Erica that appellant had ―put his finger in her pee and in her butt.‖ Erica
called Kevin to the restroom, and Quintessa told him what she had said to Erica.
Kevin was ―beyond mad,‖ but Erica asked him to not confront appellant with what
Quintessa had said. Kevin asked appellant to leave. According to Kevin, after
appellant left, Kevin, Erica, and Quintessa cried together.
Erica testified that a couple of days later, she told Quintessa’s pediatrician,
Dr. Victor Diaz de Leon, about what had occurred. Erica and Kevin each testified
that Quintessa also told Dr. Diaz de Leon about what she had previously said to
Erica and Kevin. According to Erica and Kevin, Dr. Diaz de Leon told them to
take Quintessa to a children’s hospital, and they did so.
Rebecca Sullivan, a forensic nurse, testified that she met Quintessa at
Cook Children’s Medical Center on November 6, 2010. Quintessa told Sullivan
that appellant had put ―his finger in [Quintessa’s] butt and [her] pee,‖ and
Quintessa later clarified for Sullivan that her ―pee‖ meant her genitalia.
6
Quintessa told Sullivan that when appellant did this, Quintessa felt ―nasty and not
good.‖ Sullivan testified that she did not find anything unusual upon physically
examining Quintessa (such as signs of trauma on her hymen or anal region), but
Sullivan said that ―most children that are sexually abused will have a normal
exam.‖ Sullivan testified that based on statements made by some children in
examinations, she may believe that they have been coached, but that
Quintessa’s statements to her on the date of the examination did not raise any
such ―red flags.‖
Quintessa later participated in an interview with a child forensic
interviewer, Carrie Paschall. During the interview, which lasted nearly thirty
minutes, Quintessa was, according to Paschall, very active and chatty.
Quintessa provided several ―sensory details‖ about what had occurred with
appellant, which signified to Paschall that Quintessa could have been ―reporting
something from a memory . . . versus parroting back something [she had] been
told to repeat.‖ Quintessa told Paschall that appellant had touched her on the
inside of her private part while they were behind a couch and that this touching
had hurt her. Quintessa said to Paschall that during this incident, her mother
was cooking in the kitchen and her father was cleaning. Paschall did not sense
―red flags‖ about Quintessa’s truthfulness during the interview.7 Donna Hubbard,
an Arlington police detective, watched the interview, spoke to Erica, and
7
Paschall conceded at trial, however, that there is no definitive way to
determine whether a child is truthful.
7
prepared appellant’s arrest warrant. At trial, Quintessa testified that appellant
had put his finger on the outside of her ―pee,‖ which was the place she used ―[f]or
going potty.‖
Despite these facts, appellant contends that the evidence is insufficient to
support his conviction because ―virtually . . . all the essential testimony was
inconsistent with other testimony on the same subject.‖ Appellant also asserts
that the evidence is insufficient because it shows that he lacked access to
Quintessa. Essentially, appellant argues that the record contains too many facts
that are inconsistent with his guilt.
It is true that certain witnesses’ testimony produced inconsistencies,
including some contradictions that were seemingly only tangentially related to the
issue of appellant’s sexual contact with Quintessa. It is also true that some
evidence, if given credence by the jury, could have weighed against a finding of
guilt. For example, Quintessa told Paschall near the time of the offense that
appellant had touched her behind a couch, that the touching had hurt her, and
that at the time of the offense, her mother was cooking in the kitchen and her
father was cleaning. At trial, however, Quintessa testified that it did not hurt
when appellant touched her and that while he was touching her, she was in a
bathroom, Erica was getting a drink, and Kevin was sitting in a chair. Quintessa
also stated at one point in her testimony, contrary to Paschall’s account of their
conversation, that appellant did not touch her ―butt.‖ Quintessa testified that
appellant had touched her ―pee‖ on the same night that she had told her parents
8
what had happened. But Erica testified that the incident described by Quintessa
could not have happened on that night because Quintessa had been ―right next
to [Erica] when [appellant] was there.‖ Quintessa testified that Kevin, Erica, and
appellant did not smoke around her, but Erica said that she, Kevin, and appellant
smoked marijuana while Quintessa was in a play area that was essentially in the
same room that they were in.
Detective Hubbard, who had investigated close to a thousand cases
concerning children, testified that it is not uncommon for young children to
change the details about an offense a year or two years after the offense occurs.
Paschall, who teaches courses on how to properly interview children, indicated
that preschool children can recall who committed an act and what happened but
have more difficulty recalling when the act occurred. Although Paschall said that
she would expect a child’s memory of the details of an offense to fade over time,
she testified that she would not typically expect the location of the offense to
change. She later testified, however, that ―over a long period of time for a young
child, you would expect to see some inconsistencies in the details surrounding
the major event.‖ Paschall also testified that it is possible that a child could
confuse where an offense occurred with where the child told others about the
offense.
Cody Adams, an Arlington police officer, testified that in November 2010,
he went to the children’s hospital to meet with Quintessa and her parents.
According to Officer Adams, the parents, who were ―heartbroken,‖ told him that
9
after Quintessa had told them about what had occurred with appellant, they went
back into the living room to finish their game of dominos. When Erica testified,
she denied having finished the game, and she stated that she did not remember
telling Officer Adams that she had finished it. Kevin also testified that he did not
remember making that statement. Officer Adams conceded that the parents’
statement that they ―finished‖ the game could have meant only that the game
ended upon Quintessa’s outcry.
Erica testified that appellant had a hard time walking, was diabetic, and
sometimes needed help standing up. Kevin testified, however, that although
appellant did not walk long distances, he ―move[d] around a lot.‖ Erica stated
that ―[f]or the most part,‖ she was near Quintessa when appellant was near her,
but Erica also testified that there were times that she was not in the apartment
while appellant was near Quintessa. According to Erica, most of the time when
appellant came to her apartment, he would simply go somewhere and sit down.
Also, Erica testified that she would not have allowed appellant to go near the
bathroom while Quintessa was in there, and Kevin testified that appellant did not
go to the bathroom with Quintessa. But at one point during the cross-
examination of Kevin by appellant’s counsel, the following exchange occurred:
Q. Let’s just cut to the chase on this. If your wife was cooking
dinner in the kitchen and somebody had the guts to walk into your
house, pull your daughter’s pants and panties down, and digitally
penetrate her anally and vaginally behind that couch, somebody
would have known, right?
A. You said what?
10
Q. Somebody would have known, right?
A. No. Like I said, obviously not. If they are behind the couch
where I cannot see everything that’s going on, how can I say for
sure that he did not do anything. I cannot say for sure he did not do
anything.
Dr. Diaz de Leon testified that his appointment with Quintessa in the first
week of November 2010 concerned coughing and a runny nose and that at the
end of the appointment, he was asked about what to do with a child that might
have been molested. Dr. Diaz de Leon stated, however, that he did not
remember hearing a specific allegation of sexual abuse, and he said that if such
an allegation had been made, he would have documented it in his records.
Quintessa, Erica, and Kevin each testified that Quintessa had told Dr. Diaz de
Leon about what appellant had done.
In her investigation, Detective Hubbard collected several pairs of panties
that Quintessa might have worn on the day of the offense, and she sent those
panties to the medical examiner’s office for a DNA analysis. Constance Patton, a
forensic biologist, testified that she had examined four pairs of Quintessa’s
panties that Detective Hubbard had collected, that each pair contained the same
male’s DNA profile, and that none of them matched appellant’s DNA. Patton said
that she had no opinion about which male’s DNA was on the panties or about
how the DNA got there. On cross-examination by the State, Patton explained
that the exclusion of appellant’s DNA inside Quintessa’s panties did not negate
the possibility that he touched her sexual organ. Patton testified that ―the most
11
likely scenario [was] that [the male’s DNA] was from inadvertent contact from
someone.‖ Kevin stated that he had helped Quintessa get dressed in mornings
and that he had therefore touched her panties.
Finally, appellant’s son, Phyllip Scott, testified that the allegations against
appellant were ―completely ludicrous,‖ that he did not ―have too many good
thoughts‖ about Erica and Kevin, that he never saw odd behavior between
appellant and Quintessa, and that he had never heard other allegations of
inappropriate sexual conduct by appellant.
Although the facts stated above could have caused a hypothetical jury to
question the credibility or weight of the evidence supporting appellant’s guilt, it is
evident that the jury in this case did not do so because it convicted appellant.
See Castillo v. State, No. 08-08-00332-CR, 2010 WL 4117674, at *4 (Tex.
App.—El Paso Oct. 20, 2010, no pet.) (not designated for publication) (―In finding
Appellant guilty of the charged offenses, the jury implicitly resolved the conflicts
[in the evidence] in favor of conviction.‖); Denman v. State, 193 S.W.3d 129,
132–33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding that the jury’s
conviction established its implicit rejection of the defendant’s self-defense
theory). Rather, by convicting appellant, the jury signaled that it believed enough
of Quintessa’s outcry8 or her testimony that it resolved the critical issue in
8
Outcry evidence, even if inconsistent with testimony at trial, has probative
value in our evidentiary sufficiency review. See Rodriguez v. State, 819 S.W.2d
871, 873 (Tex. Crim. App. 1991); Bermudez v. State, 878 S.W.2d 227, 229 (Tex.
App.—Corpus Christi 1994, no pet.); see also Kimberlin v. State, 877 S.W.2d
12
appellant’s case, which was whether he touched her genitals, in favor of the
State.9 The jury was the sole judge of the weight and credibility of the evidence.
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364 S.W.3d at
903. In performing our evidentiary sufficiency review, therefore, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the jury. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). Instead, we must determine whether the necessary inferences of
appellant’s guilt are reasonable based upon the cumulative force of the evidence
when viewed in the light most favorable to the verdict. See Sorrells v. State, 343
S.W.3d 152, 155 (Tex. Crim. App. 2011). We must presume that the jury
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at
903.
Viewing the evidence summarized above in the light most favorable to the
verdict, deferring to the jury’s implicit resolution of conflicts in the evidence, and
acknowledging that the jury was free to accept or reject any part of the testimony
of any witness, we hold that the jury could have rationally found the essential
828, 831 (Tex. App.—Fort Worth 1994, pet. ref’d) (―A child victim’s outcry
statement alone can be sufficient to sustain a conviction . . . .‖).
9
Appellant does not contend that there are facts in the record by which the
jury could have found that he touched Quintessa’s genitals without the intent to
arouse or gratify someone’s sexual desire. See Tex. Penal Code Ann.
§ 21.11(a)(1), (c)(1).
13
elements of indecency with a child by contact beyond a reasonable doubt. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903; cf.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (―The jury
observed the complainant’s demeanor and was entitled not only to reconcile
any . . . conflicts, but even to disbelieve her recantation.‖). Thus, we hold that the
evidence is sufficient to support appellant’s conviction, and we overrule
appellant’s sole point.
Conclusion
Having overruled appellant’s point, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 28, 2012
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