Bryan Lacy Swisher v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00285-CR
BRYAN LACY SWISHER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2016-774-C1
MEMORANDUM OPINION
On September 9, 2020, this Court issued a memorandum opinion affirming
appellant Bryan Lacy Swisher’s convictions for continuous sexual abuse of a young child
and indecency with a child by contact. See generally Swisher v. State, No. 10-19-00285-CR,
2020 Tex. App. LEXIS 7330 (Tex. App.—Waco Sept. 9, 2020, no pet. h.) (mem. op., not
designated for publication). On September 23, 2020, Swisher filed a motion for rehearing,
and we requested a response to that motion. After reviewing the motion for rehearing
and response thereto, we grant the motion for rehearing. We withdraw our
memorandum opinion and judgment issued on September 9, 2020, and substitute the
following in their place.
In three issues, appellant, Bryan Lacy Swisher, challenges his convictions for
continuous sexual abuse of a young child and indecency with a child by contact. See TEX.
PENAL CODE ANN. §§ 21.02, 21.11. We affirm as modified.
I. SUFFICIENCY OF THE EVIDENCE
In his first issue, Swisher argues that the evidence is legally and factually
insufficient to prove identity. Swisher emphasizes that the child victim failed to
sufficiently identify Swisher in open court as the assailant and that neither the child
victim’s mother nor another relative who alleged that Swisher sexually assaulted her
sufficiently identified Swisher in the courtroom as the person they were testifying about.
At the outset, we address Swisher’s contention that the evidence is factually
insufficient to prove identity. The Court of Criminal Appeals has determined that factual
sufficiency no longer applies in criminal cases. See Brooks v. State, 323 S.W.3d 893, 902,
912 (Tex. Crim. App. 2010) (plurality op.) (concluding that there is “no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the . . . factual-
sufficiency standard, and these two standards have become indistinguishable” and
holding the following: “As the Court with final appellate jurisdiction in this State, we
decide that the Jackson v. Virginia standard is the only standard that a reviewing court
Swisher v. State Page 2
should apply in determining whether the evidence is sufficient to support each element
of a criminal offense that the State is required to prove beyond a reasonable doubt. All
other cases to the contrary, including Clewis, are overruled.”); see also Martinez v. State,
327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Kiffe v. State, 361 S.W.3d 104, 109-110 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d) (rejecting a constitutional challenge to the
single sufficiency standard in criminal cases under the factual-conclusivity clause and
stating that, “[a]lthough an intermediate appellate court’s decision shall be conclusive on
all questions of fact brought before them on appeal or error, the Texas Court of Criminal
Appeals has authority to determine questions of law, including the standard of review
that an intermediate appellate court must use in conducting factual review.” (internal
citations omitted)). Therefore, because we are bound to follow the Court of Criminal
Appeals, we only apply the Jackson sufficiency standard of review to complaints styled
as legal or factual sufficiency challenges concerning the elements of a criminal offense.
See Brooks, 323 S.W.3d at 902, 912; see also Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d). Accordingly, we are not persuaded to consider this
argument in this proceeding.
We now move on to Swisher’s contention that the evidence supporting the identity
element is legally insufficient. Our standard of review is as follows:
When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the
verdict, 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,
Swisher v. State Page 3
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to defer “to
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.” Jackson, 443 U.S. at 319. We may not re-weigh
the evidence or substitute our judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
a sufficiency review must not engage in a “divide and conquer” strategy
but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of facts or
evidence, juries are permitted to draw any reasonable inferences from the
facts so long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson,
443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting inferences
from the evidence in favor of the verdict, and we defer to that resolution.
Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because
the jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone may be
sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction. Ramsey
v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at
13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” 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.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Swisher v. State Page 4
In the instant case, Swisher challenges the identity element. The State is required
to prove beyond a reasonable doubt that the accused is the person who committed the
crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d)
(citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Rice v. State, 901 S.W.2d
16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d)). Identity may be proven by direct or
circumstantial evidence. Id. (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986);
Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth 1999, pet. ref’d); Creech v.
State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986, no pet.)). “In fact, identity may be
proven by inferences.” Id. (citing United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981));
see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.); see also Jones v.
State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, pet. ref’d) (explaining that the
jury may use common sense and apply common knowledge, observation, and experience
gained in ordinary affairs of life when giving effect to an inference that may reasonably
by drawn from the evidence).
In the instant case, Swisher was charged by indictment with continuous sexual
abuse of a young child, H.H., and indecency with a child by contact. At trial, H.H., who
was thirteen years old at the time of trial, recounted that the sexual abuse occurred every
day when she went to Swisher’s house when she was five or six years old. H.H. identified
Swisher in open court as the defendant in this case, but she did not specifically identify
him as the perpetrator of charged offenses. She also recalled that the sexual abuse
Swisher v. State Page 5
involved taking off her pants, sticking his hand in her crotch area, wiggling his fingers,
and touching her breasts and occurred in Swisher and his wife’s bedroom. According to
H.H., this happened “[t]oo many [times] to count.”
The State also presented the testimony of H.H.’s pediatric Nurse Practitioner Katie
Carranza, who noted that H.H. is very mature and well-spoken for her age and that H.H.
told her that “she had been touched inappropriately, and then she said that it was her
step-grandfather.” H.H. told Nurse Carranza that H.H.’s step-grandfather had touched
her private parts for years.
Additionally, H.H.’s mother identified Swisher as her “mom’s husband”—or, in
other words, her step-father. C.E., H.H.’s sister, identified Swisher as “Bryan,” her “step-
grandpa,” and stated that, on several occasions, Swisher touched her “no-no square” and
moved his fingers while the two were in Swisher’s bedroom.
And finally, Dr. Soo Battle, a child-sexual-abuse examiner and Medical Advisor at
the Advocacy Center for Crime Victims and Children, testified that she conducted a
medical exam of H.H., and during the exam, H.H. noted that: “My granddad, Bryan
Swisher, he molested me.” H.H. informed Dr. Battle that Swisher is her “mom’s stepdad”
and that he touched her breasts and “no-no” spot with his hands and that his hand were
moving when the touching occurred. This happened “more times that [she] can count”
over the course of two years and started when she was six or seven years old. H.H.
Swisher v. State Page 6
recounted that the inappropriate touching caused her “no-no” spot to hurt when she
urinated.
Based on the foregoing, we conclude that, viewing the evidence in the light most
favorable to the jury’s verdict, a rational factfinder could have found beyond a reasonable
doubt that Swisher was the perpetrator of the sexual abuse alleged in the indictment. See
Johnson, 673 S.W.2d at 196; Clark, 47 S.W.3d at 214; Roberson, 16 S.W.3d at 167; Jones, 900
S.W.2d at 399; see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Zuniga, 551 S.W.3d
at 732-33. Accordingly, we cannot say that the evidence pertaining to the identity element
of the charged offenses is insufficient. See TEX. PENAL CODE ANN. §§ 21.02, 21.11; Jackson,
443 U.S. at 318-19, 99 S. Ct. 2788-89; Zuniga, 551 S.W.3d at 732-33; Ramsey, 473 S.W.3d at
809; Hooper, 214 S.W.3d at 13. We overrule Swisher’s first issue.
II. THE ADMISSION OF ALLEGED HEARSAY EVIDENCE
In his second issue, Swisher complains that the trial court abused its discretion by
admitting hearsay evidence from Dr. Battle regarding H.H.’s medical exam. Specifically,
Swisher argues that the statements made by H.H. to Dr. Battle during the medical exam
do not qualify under the hearsay exception for statements made for medical diagnosis or
treatment because neither H.H. nor her mother went to Dr. Battle to seek a diagnosis or
Swisher v. State Page 7
treatment, Swisher’s identity was irrelevant to the treatment provided, and because the
detailed statements were unnecessary for the treatment provided.1
The record reflects that H.H. was referred to Dr. Battle by a Detective Derek Thiele
of the Waco Police Department and Cybil Humphreys of the McLennan County District
Attorney’s Office. Dr. Battle recounted that H.H.’s mother indicated that H.H. had
trouble sleeping and occasional nightmares. In fact, she was taking medication to help
her sleep. Additionally, H.H.’s mother told Dr. Battle that H.H. was having pain during
urination about three weeks prior to the examination, which was when H.H. stated the
last instance of sexual abuse occurred. In light of this information, Dr. Battle
administered a urine test to check for a urinary-tract infection. H.H. also revealed to Dr.
Battle that she had nightmares about “demon squirrels,” but she denied being depressed,
The medical-diagnosis exception to the hearsay rule is outlined in Texas Rule of Evidence 803(4)
1
and provides that:
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
...
(4) Statement made for Medical Diagnosis or Treatment.
A statement that:
(A) is made for—and is reasonably pertinent to—medical diagnosis or
treatment; and
(B) describes medical history; past or present symptoms or sensations;
their inception; or their general cause.
TEX. R. EVID. 803(4).
Swisher v. State Page 8
fearful, or angry. Dr. Battle testified that her role in the process was to determine if
anything was wrong with H.H.’s body and that the information she gathered was for that
purpose. In that vein, Dr. Battle conducted a physical examination of H.H. that included
testing for various sexually-transmitted diseases. Later, H.H. told Dr. Battle that Swisher
had sexually abused her and then provided details of the sexual abuse.
Assuming, without deciding, that it was error to admit Dr. Battle’s testimony
about H.H.’s statements under the hearsay exception outlined in Texas Rule of Evidence
803(4), we conclude that the alleged error is harmless. Error in the admission of evidence
is non-constitutional error. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018);
see Luna v. State, 301 S.W.3d 322, 326 (Tex. App.—Waco 2009, no pet.). Under Texas Rule
of Appellate Procedure 44.2(b), an appellate court must disregard non-constitutional
error unless the error affected the defendant’s substantial rights. TEX. R. APP. P. 44.2(b);
see Gerron v. State, 524 S.W.3d 308, 325 (Tex. App.—Waco 2016, pet. ref’d). A substantial
right is affected when the erroneously-admitted evidence, viewed in light of the record
as a whole, had “a substantial and injurious effect or influence on the jury’s verdict.”
Gerron, 524 S.W.3d at 325. In assessing the likelihood that the jury’s decision was
improperly influenced, we must consider the entire record, including such things as the
testimony and physical evidence admitted, the nature of the evidence supporting the
verdict, the character of the error and how it might be considered in connection with other
evidence, the jury instructions, the State’s theories, defensive theories, closing arguments,
Swisher v. State Page 9
voir dire, and whether the State emphasized the error. Barshaw v. State, 342 S.W.3d 91, 94
(Tex. Crim. App. 2011).
In arguing harm, Swisher notes that Dr. Battle’s testimony allowed the State to
present the sexual-abuse allegations in a more organized manner through the testimony
of an experienced expert witness who merely repeated the allegations and explained why
there was no physical evidence of sexual abuse. He further contends that the admission
of this evidence was harmful “because no witness identified Swisher as the person who
committed the alleged offenses.”
As shown above, the record includes testimony from the child victim, H.H.,
regarding the sexual abuse. Such testimony alone is enough to support a conviction. See
TEX. CODE CRIM. PROC. ANN. art. 38.07; see also Abbott v. State, 196 S.W.3d 334, 341 (Tex.
App.—Waco 2006, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002,
pet. ref’d). Furthermore, contrary to Swisher’s contention, the record contains sufficient
evidence from which the jury could infer that Swisher was the perpetrator of the sexual
abuse against H.H., especially given the combined testimony of H.H., C.E., H.H.’s
mother, and Nurse Carranza. Moreover, we find nothing else in the record that supports
Swisher’s allegation of harm. In other words, when looking at the record as a whole, we
cannot say that the admission of this evidence had a substantial and injurious effect or
influenced the jury’s verdict. See TEX. R. APP. P. 44.2(b); see also Solomon v. State, 49 S.W.3d
356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
Swisher v. State Page 10
1998). Accordingly, any error in the admission of the complained-of testimony was
harmless. See TEX. R. APP. P. 44.2(b). We therefore overrule his second issue.
III. THE TIME-PAYMENT FEE
In his third issue, Swisher contends that the court cost imposed for a time-payment
fee under section 133.103(b) and (d) of the Local Government Code is unconstitutional.
See TEX. LOCAL GOV’T CODE ANN. § 133.103(b), (d). As such, Swisher requests that we
modify the judgments by deleting $22.50 of the court costs assessed.
The cost bill was generated the same day as the judgments on August 19, 2019, but
it was not clearly incorporated into either judgment. The judgments include a blank for
“court costs,” which states “SEE BELOW.” The judgments also include a section entitled,
“Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made
a part hereof.” The box next to this section in each judgment is not checked. Included in
the bill of costs is the time-payment fee in the amount of $25.
Regarding the constitutionality of section 133.103(b) and (d) of the Local
Government Code, this Court has previously held that these provisions are facially
unconstitutional because the collected funds are sent into the general-revenue fund and
are not sufficiently related to the criminal-justice system or a legitimate criminal-justice
purpose. See Simmons v. State, 590 S.W.3d 702, 710-13 (Tex. App.—Waco 2019, pet. filed)
(holding that section 133.103(b) and (d) of the Local Government Code are facially
unconstitutional because the collected funds are sent into the general-revenue fund and
Swisher v. State Page 11
are not sufficiently related to the criminal-justice system or a legitimate criminal-justice
purpose (citations omitted)). As such, we sustain Swisher’s third issue.
IV. CONCLUSION
Because we have sustained Swisher’s third issue and concluded that ninety
percent of the time-payment fee, as prescribed in section 133.103(b) and (d) of the Local
Government Code, is facially unconstitutional, we modify the trial court’s judgments to
change the time-payment fee from $25 to $2.50. See TEX. CODE CRIM. PROC. ANN. art.
102.073 (providing that, in a single criminal action in which a defendant is convicted of
two or more offenses or of multiple counts of the same offense, the court may assess court
costs or fees only once against the defendant); Hurlburt v. State, 506 S.W.3d 199, 203 (Tex.
App.—Waco 2016, no pet.) (“Thus, we presume that the Legislature, in using the phrase,
‘in a single criminal action’ in article 102.073(a), meant the phrase to be interpreted as
‘allegations and evidence of more than one offense . . . [which] are presented in a single
trial or plea proceeding,’ as stated in Pharr.”). We affirm the trial court’s judgments as
modified.
JOHN E. NEILL
Justice
Swisher v. State Page 12
Before Chief Justice Gray
Justice Davis, and
Justice Neill
Affirmed as modified
Opinion delivered and filed December 30, 2020
Do not publish
[CRPM]
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