Logan Wesley v. the State of Texas ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00097-CR
LOGAN WESLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court
Bowie County, Texas
Trial Court No. 20F0054-202
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Logan Wesley1 was charged with sexually assaulting Sylvia Hanes, Jamie Cook, and Jane
Parker when they were children.2 The charges related to all three victims were tried in a single,
consolidated jury trial in Bowie County, Texas.3 In total, the jury found Wesley guilty of five
counts of aggravated sexual assault of a child, nine counts of sexual assault of a child, and two
counts of indecency with a child by contact. The trial court sentenced Wesley to five life
sentences and 220 years in prison, with the sentences to run consecutively.
Here, Wesley appeals from his seven convictions related to Jamie Cook: two counts of
aggravated sexual assault of a child under fourteen years of age and five counts of sexual assault
of a child. Wesley argues that (1) the trial court’s failure to include a specific unanimity charge
in the jury instructions was egregiously harmful, (2) the judgments should be modified to
reference the correct provisions of the Texas Penal Code, and (3) there is legally insufficient
evidence to support his two convictions for aggravated sexual assault of a child under fourteen
years of age.
1
Other documents in the clerk’s record refer to appellant as Logan Wesley, III, yet, the judgment only refers to
Logan Wesley. Nevertheless, appellant did not argue at trial that he was not the person identified in the indictment,
and he does not argue in this appeal that he is not the same person identified in the judgment.
2
To protect the identity of the victims, who were minors at the time of the alleged abuse, we refer to them by
pseudonyms. See TEX. R. APP. P. 9.10(a)(3).
3
The convictions related to victim Hanes are on appeal under our cause number 06-20-00096-CR and include three
counts of aggravated sexual assault of a child under fourteen, three counts of sexual assault of a child under
seventeen, and one count of indecency with a child by contact. The convictions related to victim Cook are on appeal
under our cause number 06-20-00097-CR and include two counts of aggravated sexual assault of a child under
fourteen and five counts of sexual assault of a child under seventeen. The convictions related to victim Parker are
on appeal under our cause number 06-20-00098-CR and include one count each of indecency with a child by contact
and sexual assault of a child.
2
We modify the trial court’s judgments to recite the correct statutes of offenses, and we
affirm the judgments, as modified, because the trial court’s jury charge error did not cause
Wesley egregious harm and the evidence supporting Wesley’s convictions for aggravated sexual
assault of a child under fourteen years of age is supported by legally sufficient evidence.
The factual and procedural background, including the testimony and evidence produced
during the trial of this case, were detailed in this court’s opinion, issued on this date, in Wesley v.
State, cause number 06-20-00096-CR.
I. Legal Sufficiency
In his first point of error, Wesley contends that there is legally insufficient evidence to
support his two convictions for aggravated sexual assault of a child under the age of fourteen
years.
A. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous legal
sufficiency review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
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conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007)).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
Under a hypothetically correct jury charge, the State was required to prove that Wesley
intentionally or knowingly caused the penetration of Cook’s sexual organ, that Cook was
younger than fourteen years of age at the time, and that the offense occurred in Bowie County,
Texas. See TEX. PENAL CODE ANN. §§ 1.04, 22.021(a)(1)(B)(i), 22.021(a)(2)(B); see also King
v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Here, Wesley argues that there is legally
insufficient evidence to support his two convictions for aggravated sexual assault of a child
younger than fourteen because there is insufficient evidence that count one of the indictment—
referred to here as the “dead-end road” assault—occurred in Bowie County, Texas, and there is
insufficient evidence that Cook was under the age of fourteen at the time of the events alleged in
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count two of the indictment—referred to here as the first Martin Resources assault.4 Wesley
does not challenge the remaining elements, and therefore, we do not address them.
B. Count One—Location of the Assault
Wesley contends that the evidence was legally insufficient to support the jury’s finding
that the allegations of count one—the “dead-end road” assault—occurred in Bowie County,
Texas. Cook testified that, when she was still thirteen years old, Wesley had “taken everybody
home” after church except for her, and he drove to the end of a dead-end street and penetrated
her vagina with his penis, an act he performed more than twice while she was thirteen years old.
Cook testified, “[A]s we were leaving, our -- the car collided with another car. So there was a
car crash, and he . . . began chasing the car up Euclid, and the car . . . got away, and so he took
me home.” The State asked her, “You’re 13 years old. He’s taking you down a dead-end road,
and you said Euclid?” to which Cook responded, “Uh-huh (yes).” Cook agreed that Euclid, “off
South State Line,” was in Bowie County, Texarkana, Texas.
Wesley argues that the “dead-end road” offense could not have occurred in Bowie
County, Texas, because Cook’s answer affirmed that the offense occurred on Euclid, a street he
claims only exists wholly in the State of Arkansas.5 We disagree. Even assuming that Wesley is
correct regarding Euclid Street’s location, there is legally sufficient evidence from which the jury
could have inferred that the assault occurred in Bowie County, Texas, and that Cook’s testimony
4
Wesley conceded that counts one and two of the indictment were identical allegations, and therefore, for the
Court’s convenience, he challenges the two most fact specific situations elicited from the testimony with the
understanding that either situation could be applied to either count of the indictment.
5
The State contends that Wesley’s argument is a challenge to venue and, because it was not raised at trial, was
waived on appeal. However, it is not a venue issue because Wesley argues that the offense occurred in a different
state rather than a different Texas county.
5
about Euclid Street identified where Wesley chased the other car after the assault was completed.
Specifically, Cook testified that the assault itself occurred at the end of a dead-end road. There
was no evidence that Euclid was a dead-end street. Detective Smith testified that Cook told her
that the assault occurred “at the end of a dead-end road somewhere on the Texas side, out around
there.” Based on an investigation of the area, Smith deduced that the assault occurred at the
dead-end of DeLoach Street, which is in Bowie County, Texarkana, Texas, and that the collision
occurred on or near Euclid while Wesley and Cook were “en route from that area back to Mary
Street” in Texarkana, Arkansas, where Cook was dropped off at home.
Here, the jury was faced with evidence that could give rise to competing inferences, but
resolving evidentiary conflicts is the jury’s function. Pierson v. State, 398 S.W.3d 406, 421
(Tex. App.—Texarkana 2013), aff’d, 426 S.W.3d 763 (Tex. Crim. App. 2014); Mosley v. State,
983 S.W.2d 249, 254 (Tex. Crim. App. 1998). As the judge of witness credibility, the jury was
free to reject the available inference that the assault occurred on Euclid, accept the testimony and
inference that the assault occurred on a nearby dead-end road, and believe Smith’s testimony that
the assault occurred on the dead-end road identified by Smith to be in Bowie County, Texarkana,
Texas. See Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. stricken)
(citing Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993)). Viewing all the evidence in a
light most favorable to the verdict, we find that the evidence was legally sufficient to prove that
the offense occurred in Bowie County, Texas. Accordingly, we overrule this point of error.
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C. Count Two—Age of the Victim
Wesley also contends that the evidence was legally insufficient to support the jury’s
finding that Cook was younger than fourteen years of age at the time of the first Martin
Resources assault. During direct examination, Cook specifically testified regarding what
happened at Martin Resources, where that was located, and how old she was when it happened:
[The State]: . . . Did he ever take you to any of his places of
employment?
[COOK]: Yes.
[The State]: Okay. Tell the jury about that.
[COOK]: He took me multiple times to his job. The name of his job
is Martin Resources, and it’s in Nash, Texas.
[The State]: Okay. Is Nash, Texas, in Bowie County, Texas?
[COOK]: I believe so.
....
[The State]: When he would take you to Martin Resources, was this
before and after your 14th birthday?
[COOK]: Yes.
[The State]: Okay. If you had to take a guess for the jury, about how
many times would you say he carried you to Martin Resources?
[COOK]: I would say maybe about 15 to 20 times.
[The State]: . . . And at the time that y’all were in Martin Resources,
would he penetrate your sexual organ with his sexual organ?
[COOK]: Yes.
....
7
[The State]: . . . Now 15 to 20 times at Martin Resources before and
after your 14th birthday; is that fair?
[COOK]: Uh-huh (yes).
Cook’s testimony alone, if believed by the jury, was sufficient evidence for the jury to
find beyond a reasonable doubt that she was younger than fourteen years old when Wesley took
her to the Martin Resources office in Bowie County, Texas, and penetrated her vagina with his
penis. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Supp.). “Because in a jury trial the jury
serves as the exclusive judge of the credibility of witnesses and of the weight to be given their
testimony, the jury is free to accept or reject any or all of any witness’s testimony and reconcile
any conflicts in the evidence.” Duren, 87 S.W.3d at 724 (citing Turro v. State, 867 S.W.2d 43,
47 (Tex. Crim. App. 1993)). Here, the jury apparently believed Cook’s testimony and rejected
any conflicting evidence or relevant challenge to Cook’s credibility. Therefore, viewing the
evidence in the light most favorable to the verdict, we overrule this point of error.
II. Specific Unanimity Instruction
In his next point of error, Wesley contends that the trial court’s failure to include a
specific unanimity instruction requiring the jury to unanimously agree on what specific conduct
constituted each specific count caused egregious harm.
A. Standard of Review
“We employ a two-step process in our review of alleged jury charge error.” Murrieta v.
State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and
8
then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871
S.W.2d at 731–32)).
“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the
court and be governed thereby.” Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 36.13). “A trial
court must submit a charge setting forth the ‘law applicable to the case.’” Id. (quoting Lee v.
State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM.
PROC. ANN. art. 36.14). “The purpose of the jury charge . . . is to inform the jury of the
applicable law and guide them in its application. It is not the function of the charge merely to
avoid misleading or confusing the jury: it is the function of the charge to lead and prevent
confusion.” Id. (quoting Lee, 415 S.W.3d at 917 (quoting Delgado v. State, 235 S.W.3d 244,
249 (Tex. Crim. App. 2007))).
B. The Jury Charge
The indictment alleged the following offenses: (a) counts one and two of the indictment
alleged aggravated sexual assault of a child younger than fourteen years of age by penetrating
Cook’s sexual organ with his sexual organ, (b) count three alleged sexual assault of a child by
penetrating her sexual organ with his sexual organ, (c) count four alleged sexual assault of a
child by causing the penetration of her mouth by his sexual organ, (d) count five alleged sexual
assault of a child by penetrating her sexual organ with his sexual organ, (e) count six alleged
sexual assault of a child by contacting her sexual organ with his mouth, and (f) count seven
alleged sexual assault of a child by contacting her anus with his sexual organ. Here, the
9
application paragraphs of the court’s charge tracked the language of the indictment, but the only
mention of unanimity is made in the closing paragraph of the charge, stating, “Your verdict must
be unanimous, and when reached, you will notify the bailiff in the manner instructed and the
Court will send for you and your verdict will be received in open court.” Wesley concedes that
he did not object to the unanimity instruction, but he argues that the trial court erred because the
charge failed to inform the jury that it was required to be unanimous about which instance of
criminal conduct satisfied each charged offense.6
“Texas law requires that a jury reach a unanimous verdict about the specific crime that
the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). “This
means that the jury must ‘agree upon a single and discrete incident that would constitute the
commission of the offense alleged.’” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex.
Crim. App. 2007)). “[N]on-unanimity may occur when the State charges one offense and
presents evidence that the defendant committed the charged offense on multiple but separate
occasions.” Id. at 772. However, when more than one incident of criminal conduct could be
relied on for conviction, a general instruction on unanimity is insufficient. Arrington v. State,
451 S.W.3d 834, 838–39 (Tex. Crim. App. 2015). Because “[e]ach of the multiple incidents
individually establishes a different offense or unit of prosecution, . . . [t]he judge’s charge, to
ensure unanimity, would need to instruct the jury that its verdict must be unanimous as to a
single offense or unit of prosecution among those presented.” Id.
6Wesley did not demand that the State elect which specific criminal conduct it relied upon for each charged offense.
10
Here, Cook testified to different instances of aggravated sexual assault when she was
younger than fourteen and several instances of sexual assault occurring between the ages of
fourteen and seventeen. Therefore, the jury was presented with evidence of different instances of
aggravated sexual assault and sexual assault to support each count for which Wesley was
convicted. Neither the State nor Cook explicitly stated which of the specific instances satisfied
which count. Thus, “[t]he jury could have relied on separate incidents of criminal conduct,
which constituted different offenses or separate units of prosecution,” in finding Wesley’s guilt
on a particular charge. Cosio, 353 S.W.3d at 774. Therefore, the trial court was required to
instruct the jury that its verdict had to be unanimous as to each single unit of prosecution—each
of the seven counts in the indictment. See id.; Arrington, 451 S.W.3d at 839. However, because
the trial court submitted only a general unanimity instruction, “[t]he jury may have believed that
it had to be unanimous about the offenses, not the criminal conduct constituting the offenses.”
Cosio, 353 S.W.3d at 774. Because this created the possibility of a non-unanimous verdict, the
jury charge was erroneous. See id.; Arrington, 451 S.W.3d at 839.
C. Harm Analysis
“The level of harm necessary to require reversal due to jury charge error is dependent
upon whether the appellant properly objected to the error.” Murrieta, 578 S.W.3d at 555 (citing
Abdnor, 871 S.W.2d at 732). “Here, because the defendant did not object to the charge, we will
not reverse the judgment unless the record shows the error resulted in egregious harm, Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (op. on reh’g), such that he did not receive a fair and impartial
11
trial.” Id. (citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—
Texarkana 2008, no pet.)). “Jury-charge error is egregiously harmful if it affects the very basis
of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id.(quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). “In making this
determination, we review ‘the entire jury charge, the state of the evidence, the argument of
counsel, and any other relevant information in the record as a whole.’” Id. (quoting Villarreal v.
State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism’d, untimely filed) (citing
Almanza, 686 S.W.2d at 171)). “Direct evidence of harm is not required to establish egregious
harm.” Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
First, we examine the error in light of the entire jury charge. Here, as found above, the
charge “permitted non-unanimous verdicts based on evidence presented in the case.” Tiller v.
State, 578 S.W.3d 143, 148 (Tex. App.—Texarkana 2019, no pet.) (quoting Arrington, 451
S.W.3d at 841). The only mention of unanimity in the charge was general, boilerplate language
at the end of the charge that stated, “Your verdict must be unanimous, and when reached, you
will notify the bailiff in the manner instructed and the Court will send for you and your verdict
will be received in open court.” Furthermore, the error affected each of the seven counts on
which Wesley was convicted. See Tiller, 578 S.W.3d at 148. Therefore, a review of the entire
charge weighs in favor of finding egregious harm.
The jury’s convictions in this case were supported by ample evidence. Under Texas law,
Cook’s testimony alone was sufficient to support the jury’s verdicts on each of the seven counts.
See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Supp.). Cook testified that she was thirteen years
12
old when Wesley had sex with her at the dead-end road on the night of the car accident and that
they had intercourse “at least” two more times before she turned fourteen. Cook testified that
they had oral sex and vaginal intercourse at the Martin Resources office “15 to 20 times,”
including at least once when she was only thirteen years old. She testified that, when she was
between fourteen and seventeen years old, he drove her to Wright Patman Lake in his white Ford
work truck, where he penetrated her mouth and vagina with his penis and touched her vagina
with his mouth. At times, Wesley would abuse her when she was the last one dropped off by the
church van. He asked her to send messages to his pager, telling him that she loved him. She
confirmed that, when she was between fourteen years old and seventeen years old, Wesley
penetrated her vagina with his fingers and penis, put his mouth on her vagina, had her put her
mouth on his penis, and penetrated her anus with his penis.
The police report corroborated Cook’s testimony regarding the date, location, and details
of the accident as well as the model and color of the car Wesley was driving. Detective Smith’s
investigation revealed a dead-end road in Bowie County, Texas, that she believed to be the
location of the assault that night. Smith testified that it was her opinion that the collision on
Euclid was “en route” from the dead-end road to Cook’s home on Mary Street in Texarkana,
Arkansas. Evidence confirmed Cook’s testimony that Martin Resources issued Wesley a pager
and a white Ford work truck, and other testimony corroborated Cook’s description of the layout
and décor at the Martin Resources office. Although Cook did not make an outcry of abuse for
years, Davison and Smith testified that it was not unusual for victims of chronic childhood sexual
13
abuse, such as Cook, to delay their outcry for years, to be unable to recall specific dates, and to
provide fragmented details of the abuse.
Weighing in Wesley’s favor was his own testimony and that of his family members. His
family members denied ever seeing or knowing of him behaving inappropriately with Cook.
Wesley maintained that he had a consensual sexual relationship with Cook but claimed that it did
not start until after she was eighteen years old. Wesley testified that Cook was never dropped off
last because she always got off the church van with her brother. Wesley’s nephew, Derrick,
testified that Cook could not ever have been the last person dropped off by the church van
because he and Wesley’s children were always the last ones dropped off, as they were going to
Wesley’s house. He claimed that Cook’s allegation that she was thirteen when he had sex with
her at Martin Resources could not be true because the deer head she remembered seeing there
was not put in the office until 2005 or 2006, several years after Cook claims to have been there.
Wesley also testified that, on the night of the car accident, he was driving the church van and
both Cook and the church’s guitar player, Tracy, were in the van at the time of the accident.
Thus, the jury was faced with a “he said, she said” situation requiring it to choose
whether to believe Cook and the evidence supporting her testimony or to believe Wesley and his
family members. See Arrington, 451 S.W.3d at 841. Wesley’s theory of the case and his
decision to testify “left the jury with an all-or-nothing decision, either he was guilty or he was
not.” Id. at 842. Had the jury believed Wesley and his version of the events, they would have
acquitted him. See id. at 844. However, by finding Wesley guilty of all seven counts, the jury
clearly rejected Wesley’s defensive theory and the witness testimony in support of it. Therefore,
14
the state of the evidence weighs against a finding of egregious harm. See id. at 842, 844 (citing
Ruiz v. State, 272 S.W.3d 819, 826–27 (Tex. App.—Austin 2008, no pet.)); Cosio, 353 S.W.3d at
777–78.
Neither party’s arguments contributed or emphasized the charge error by telling the jury
it did not have to be unanimous about the criminal conduct constituting each offense. “The
parties also did not ameliorate the error by explaining what was required for a unanimous
verdict.” Tiller, 578 S.W.3d at 149. Accordingly, this factor is neutral. See Arrington, 451
S.W.3d at 844. Further, after reviewing the entire record, we find no other relevant information
favoring a finding of egregious harm. Having weighed these factors, we overrule this point of
error because we are unable to find that the charge error affected the basis of the case, deprived
Wesley of a valuable right, or affected a defensive theory. See Ngo, 175 S.W.3d at 743–44
(quoting Stuhler, 218 S.W.3d at 719).
III. The Judgment Should be Modified to Reference the Correct Penal Code Provisions
In his final point of error, Wesley contends that the judgements of conviction fail to state
the correct provisions of the Texas Penal Code under which he was convicted. We agree and
modify the judgments.
The Texas Rules of Appellate Procedure give this Court authority to modify judgments
and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French
v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Battle v. State, No. 06-07-00148-CR,
2008 WL 482343, at *3 (Tex. App—Texarkana Feb. 25, 2008, no pet.) (mem. op., not
designated for publication) (reforming judgment to reflect proper statute under which defendant
15
should have been convicted); Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi
1982, pet. ref’d).
In this case, Wesley was convicted of two counts of aggravated sexual assault of a child
under fourteen years of age, an offense found in Section 22.021 of the Texas Penal Code;
however, the judgments of conviction recite Section 21.021, a nonexistent statute, as the “Statute
for Offense.” See TEX. PENAL CODE ANN. § 22.021. Similarly, he was also convicted on five
counts of sexual assault of a child, an offense under Section 22.011 of the Penal Code, but the
five judgments of conviction incorrectly list Section 21.011, a nonexistent statute, as the “Statute
for Offense.” See TEX. PENAL CODE ANN. § 22.011 (Supp.).
Therefore, so that the judgments reflect conviction under the correct statute, we modify
the two judgments for aggravated sexual assault of a child under fourteen years of age by
replacing Section 21.021 with Section 22.021, and we modify the five judgments for sexual
assault of a child by replacing Section 21.011 with Section 22.011.
As modified, we affirm the trial court’s judgments.
Ralph K. Burgess
Justice
Date Submitted: March 30, 2021
Date Decided: December 16, 2021
Do Not Publish
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