John Kevin Dufour v. State ( 2021 )

Affirmed and Memorandum Opinion filed January 28, 2021.
In the
Fourteenth Court of Appeals
NO. 14-19-00181-CR
JOHN KEVIN DUFOUR, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1522339
MEMORANDUM OPINION
Appellant John Kevin Dufour appeals the trial court’s judgment convicting
him of the first-degree felony of continuous sexual abuse of a young child, for
which the jury assessed punishment at imprisonment for 50 years. See Jessica
Lunsford Act, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127–
28 (adding Penal Code section 21.02),1 amended by Act of Apr. 7, 2011, 82d Leg.,
1
In 2007 the legislature created the offense of continuous sexual abuse of a young child
or children in response to an expressed need to address sexual assaults against young children
R.S., ch. 1, § 6.04, sec. 21.02(c), 2011 Tex. Gen. Laws 1, 15–16 (since amended;
hereinafter “2011 Penal Code § 21.02”)..2 In a single issue, appellant challenges the
sufficiency of the evidence, arguing that the State did not prove beyond a
reasonable doubt that the two acts of sexual abuse alleged to have occurred were
committed at least 30-days apart. 2011 Penal Code § 21.02(d). We conclude that
the evidence is sufficient and affirm the judgment.
I. BACKGROUND
In 2011, C.B. was nine. She lived in Houston with her parents and three
siblings. Because her parents worked long hours and her mother often worked
nights, she stayed with her maternal grandparents—appellant and his wife—after
school several times per week and occasionally on weekends. Appellant and his
wife lived in apartments across the street from C.B.’s family until March 2014,
when C.B.’s family moved to a different apartment nearby. Sometimes she would
stay with her grandparents along with all her siblings, and on occasion she would
stay with her grandparents alone. C.B.’s grandmother also worked evening and
overnights shifts which left appellant as the only adult in the apartment on those
occasions.
In 2014, when C.B. was eleven, C.B. told her mother that appellant had been
touching her on “her chest and on her behind.” C.B.’s mother immediately severed
who are typically unable to give precise dates when there are ongoing acts of sexual abuse. See
Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring) (“Perhaps
the Texas Legislature can address this conundrum and consider enacting a new penal statute that
focuses upon a continuing course of conduct crime—a sexually abusive relationship that is
marked by a pattern or course of conduct of various sexual acts.”).
2
This statute was amended in 2017. Though the 2017 amendments do not apply to this
case, the amendments are immaterial to the issue raised by appellant. See Act of May 28, 2017,
85th Leg., R.S., ch. 685, § 31, sec. 21.02(b) (adding “regardless of whether the actor knows the
age of the victim at the time of the offense”), 2017 Tex. Gen. Laws 3038, 3056; Act of May 26,
2017, 85th Leg., R.S., ch. 1038, § 2, sec. 21.02(b) (adding “regardless of whether the actor
knows the age of the victim at the time of the offense”), 2017 Tex. Gen. Laws 4072, 4072.
2
contact between appellant and all her children, though she did not make a police
report. In 2015, C.B. told her aunt about the abuse and C.B.’s aunt urged her
mother to make a police report. C.B.’s mother reported the abuse to the police
shortly thereafter. As part of the police investigation, C.B. participated in a
forensic interview in 2016 during which she revealed that her grandfather would
touch her breasts and vagina under her clothes with his hand too many times to
count. C.B. told Clara Rivers, the forensic interviewer, that the sexual abuse
occurred for approximately five years and her grandfather gave her money for
letting him touch her. C.B. told Rivers that she did not remember exactly when it
started, but she recalls being very young. C.B. told Rivers the abuse stopped when
she was 12.
Defendant was charged by indictment alleging continuous sexual abuse of a
young child, which identified the constituent offenses of aggravated sexual assault
of a child occurring on or about October 1, 2011, as well as an act constituting the
offense of indecency with a child by contact on or about October 1, 2014. At trial,
C.B. was 16. She testified that she did not remember the “exact first time”
appellant sexually abused her, but testified about four specific incidents between
2011 and 2014.
The first incident occurred when C.B. and her siblings were watching
television with appellant. She recalls sitting on the couch with her grandfather and
he was touching her vagina under her clothes while her siblings were in the room.
The second incident occurred in appellant’s room while C.B. was laying on the
bed. Appellant removed C.B.’s clothes and licked her vagina. C.B. could not
remember when the second incident occurred in relation to the first incident. C.B.
also described a third incident in which she accompanied appellant to the grocery
store in his truck. In this circumstance, C.B. recalled asking appellant to touch her
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and he complied by touching her vagina under clothes. She did not recall when the
third incident occurred. C.B. also testified to a fourth incident in which appellant
“licked her boobs” while she was in appellant’s room. C.B. testified the abuse did
not happen every time she went to appellant’s home. Though C.B. was unable to
specify any time period for the four incidents that occurred, she did testify that the
incidents happened “less” after her family moved to a new apartment complex in
2014, because she did not see appellant as often.
II. ARGUMENT
In his sole issue, appellant contends that the evidence is legally insufficient
to sustain his conviction for continuous sexual assault of a child. Specifically,
appellant argues that the State did not prove that at least two acts of sexual abuse
specified in the indictment occurred over a period of at least thirty days.
A. Standard of review
In determining whether the evidence is sufficient to support a conviction, a
reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational jury could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Jourdan v.
State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (jury must find every constituent
element of charged offense). We may not reevaluate the weight and credibility of
the evidence and substitute our judgment for that of the jury. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury’s resolution of any
conflicting inferences from the evidence and presume that it resolved such
conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley v. State, 445
S.W.3d 159, 166 (Tex. Crim. App. 2014). Although juries may not speculate about
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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; Hooper, 214 S.W.3d at 16).
We measure sufficiency to support a conviction by comparing the evidence
presented at trial 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). A hypothetically correct jury charge reflects the governing law, the
charging instrument, the State’s burden of proof and theories of liability, and an
adequate description of the offense for the particular case. Id. In conducting a
sufficiency review, we must consider the cumulative force of all the evidence.
Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
B. Applicable law
To establish continuous sexual abuse of a child, the State must prove the
following elements:
(1) the defendant “commit[ted] two or more acts of sexual abuse”
(2) “during a period that is 30 or more days in duration,” and
(3) “at the time of the commission of each of the acts of sexual abuse,
the [defendant was] 17 years of age or older and the victim [was] a
child younger than 14 years of age.”
2011 Penal Code § 21.02(b). “Acts of sexual abuse” are listed in the statute and, as
relevant here, include indecency with a child and aggravated sexual assault. See
2011 Penal Code § 21.02(c).
A person commits aggravated sexual assault if he intentionally or knowingly
causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor. Act of Apr. 7, 2011, 82d Leg., R.S.,
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ch. 1, § 6.05, sec. 22.021, 2011 Tex. Gen. Laws 1, 16 (former Tex. Penal Code
§ 22.021(a)(1)(B)(iii), (a)(2)(B), since amended). A person commits indecency
with a child if he engages in sexual contact with the child or causes the child to
engage in sexual contact. Act of May 18, 2009, 81st Leg., R.S., ch. 260, § 1, sec.
21.11(a)(1), 2009 Tex. Gen. Laws 710, 710 (former Tex. Penal Code § 21.11(a)(1),
since amended). Sexual contact is defined to include, as relevant here, any
touching by a person, including touching through clothing, of the anus, breast, or
any part of the genitals of a child with the intent to arouse or gratify the sexual
desire of any person. Tex. Penal Code Ann. § 21.11(c)(1).3
C. Analysis
Appellant argues that the State presented no evidence that the two acts
alleged in the indictment took place during a period that is thirty or more days in
duration. The indictment alleges:
JOHN KEVIN DUFOUR, hereafter styled the Defendant, heretofore
on or about OCTOBER 1, 2011, did then and there unlawfully, during
a period of time of thirty or more days in duration, commit at least
two acts of sexual abuse against a child younger than fourteen years of
age, including an act constituting the offense of AGGRAVATED
SEXUAL ASSAULT OF A CHILD, committed against C.B. on or
about OCTOBER 1, 2011, and an act constituting the offense of
INDECENCY WITH A CHILD BY CONTACT, committed against
C.B. on or about OCTOBER 1, 2014, and the Defendant was at least
seventeen years of age at the time of the commission of each of those
acts.
C.B. testified to four specific incidents of sexual abuse, one of which
satisfies the elements of an aggravated sexual assault. At least one of the other
three incidents recounted by C.B. satisfies the requirements for indecency with a
3
For purposes of the offense of continuous sexual abuse of young child or children, an
“act of sexual abuse” does not include touching, including touching through clothing, the breast
of a child. 2011 Penal Code § 21.02(c)(2).
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child by contact. Though C.B. was unable to provide any time frame for any of the
incidents in her trial testimony, C.B.’s testimony established that the sexual abuse
occurred before and after the family’s move in March 2014 to a new apartment
complex.4 C.B. testified that after the move “there was less, like—because I
wouldn’t see him as often as I would at Shadow Ridge.”5
The jury also heard testimony from Clara Rivers, the forensic clinician
interviewer, as an outcry witness. Through Rivers, the jury learned C.B. described
appellant’s touching of her vagina as occurring over approximately a five-year
period and ending when she was twelve. C.B. was not able to recall when exactly
the abuse began. She described herself to Rivers as “just really young,” but said it
may have started when she was in the third or fourth grade. C.B. told Rivers that
appellant touched her too many times to count. C.B. also told Rivers that appellant
paid C.B. different amounts of money, which she believed was related to the length
of time she allowed appellant to touch her. Rivers’s testimony established a pattern
of continuous sexual abuse.
While C.B. did not tell Rivers of the incident in which appellant licked her
vagina, Rivers also testified that children, like C.B., may give partial disclosures
because they do not feel comfortable or are not ready. Rivers described that during
the interview process the interviewer would attempt to develop a rapport with the
child and make the child feel comfortable. Rivers interviewed C.B. once in 2016.
The jury could have concluded that both C.B.’s disclosures at trial and her
disclosures to Rivers were partial disclosures of the sexual abuse experienced by
4
C.B.’s mother testified that the family moved in March 2014.
5
C.B. was never asked at trial about the time period over which the sexual abuse
occurred. She was asked only when the incidents occurred, what grade she was in and how far
apart in time two of the incidents occurred. She responded that she did not know to all questions
about timing.
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C.B. See Tex. Code Crim. Proc. Ann. art. 38.07 (providing conviction for sexual
assault of child is “supportable on the uncorroborated testimony of the victim”).
Taking the cumulative force of C.B.’s testimony together with Rivers’s
testimony, the jury knew that incidents of sexual abuse occurred over a multi-year
period beginning around the time that C.B. was in the third or fourth grade.
Rivers’s testimony established that appellant’s touching of C.B.’s vagina was part
of a continuous pattern of sexual abuse, and not an isolated incident that occurred
at a singular point in time. Given the multi-year pattern of conduct on the part of
appellant, the jury could have reasonably inferred that appellant licked C.B.’s
vagina during the time period of sexual abuse she identified for Rivers.
See Hooper, 214 S.W.3d at 15–17 (explaining that “an inference is a conclusion
reached by considering other facts and deducing a logical consequence from them”
and that appellate courts must consider whether inferences are reasonable in light
of the “combined and cumulative force of all the evidence”). Given that C.B. told
Rivers the touching of her vagina occurred over multiple years, too many times to
count, the jury could have concluded beyond a reasonable doubt that the licking of
C.B.’s vagina occurred at least thirty days before or after one of the incidents in
which appellant touched C.B.’s vagina with his hand.
Appellant urges us to find that the evidence is not sufficient to support the
verdict because even if some “activity” or touching may have taken place in the
three-year time frame identified by Rivers, nothing established that the two acts
specified in the indictment occurred at least thirty days apart. The essence of
appellant’s argument is that because C.B. did not tell Rivers about the licking
incident, Rivers’s testimony cannot prove up timing for the aggravated assault.
Appellant also correctly references that C.B. was never able to provide a specific
time frame—or even an approximate one—to show that the two acts specified in
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the indictment occurred at least thirty days apart. However, appellant’s argument
requires us to disregard Rivers’s testimony and look at the testimony of each
witness in isolation, which conflicts with the governing standard of review
requiring us to view the “cumulative force” of the evidence in the light most
favorable to the verdict. Hooper, 214 S.W.3d at 13 (citing Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993) (“Each fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction.”)).
Though the evidence establishing the timing of the two predicate acts
adduced by the State was not directly established by any witness, it satisfies the
standard that governs our review. Jackson, 443 U.S. at 318–19. Here, the jury
heard Rivers’s testimony about appellant’s pattern of abuse and reached the
conclusion that the two predicate acts occurred at least thirty days apart. Viewing
the evidence in a light most favorable to the jury’s verdict, a rational jury could
have evaluated the cumulative force of the evidence and determined that the two
predicate acts occurred at least thirty days apart beyond a reasonable doubt.
Therefore, we hold the evidence is sufficient to establish the offense of continuous
sexual abuse of a young child and overrule appellant’s sole issue.
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CONCLUSION
We affirm the trial court’s judgment.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
Do Not Publish —Tex. R. App. P. 47.2(b).
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