Justin Scott Patrick v. the State of Texas ( 2024 )

Opinion issued March 21, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00912-CR
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JUSTIN SCOTT PATRICK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1720177
MEMORANDUM OPINION
A jury found appellant Justin Scott Patrick guilty of the felony offense of
continuous sexual abuse of a child, and the trial court assessed his punishment at
fifty years’ confinement. In one issue, appellant contends that the evidence is legally
insufficient to find beyond a reasonable doubt that he committed two or more acts
of sexual abuse as alleged in the indictment, namely aggravated sexual assault of a
child, during a period that is thirty or more days in duration. We affirm.
Background
In June 2021, appellant was charged by indictment with continuous sexual
abuse of a child. The indictment read, in relevant part:
In Harris County, Texas, JUSTIN SCOTT PATRICK,
HEREAFTER STYLED THE Defendant, heretofore on or about
February 3, 2018 and continuing through February 28, 2020, did then
and there unlawfully, during a period of time of thirty days or more 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
A.M. on or about February 3, 2018, and an act constituting the offense
of aggravated sexual assault of a child, committed against A.M. on or
about February 28, 2020, and the Defendant was at least seventeen
years of age at the time of the commission of each of those acts.
Appellant pleaded not guilty to the charged offense, and the case proceeded to trial.
T.F. began dating appellant on December 31, 2008. T.F. had a three-year old
daughter, A.M., from a prior relationship. T.F. and appellant’s son, W.P., was born
in October 2009. T.F. and appellant lived together until February 28, 2020.
T.F. stayed home with the children until appellant sustained an on-the-job
injury in 2016. At that time, A.M. was ten or eleven years old, and W.P. was six or
seven years old. T.F. testified that appellant stopped working due to his injury, and
he was eventually laid off and remained unemployed for some time. To support the
family, T.F. began working a part-time overnight shift at a hotel while she continued
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going to school during the day. T.F. testified that appellant helped a little around the
house but mainly stayed “laid up” due to his injury, playing video games and
watching television. Appellant was taking painkillers due to his knee injury.
After six months, T.F. began working full-time in the hotel industry. T.F.
testified that appellant was usually at home with the children. She testified that the
children did a lot of chores to help around the house, and that A.M. was responsible
for doing the laundry and responding to appellant’s “come here” requests, which
ranged from getting him something to drink to bringing him a tool from the garage.
A.M.’s behavior began to change in 2016. T.F. testified that A.M. “shut
down,” and she stopped talking to T.F., cleaning her room, taking baths and showers,
and brushing her hair. T.F. testified that A.M. would do anything not to leave her
room, and that she avoided interacting with everyone. T.F. testified that appellant
became angry if A.M. called her mother into her room to talk with her. On these
occasions, appellant would come to A.M.’s room and ask, “why can’t you talk to
me?” T.F. testified that she and appellant had verbal fights frequently during this
time.
In February 2018, appellant, T.F., and the children went to Coushatta Casino
Resort in Louisiana to celebrate T.F.’s birthday. A.M. was twelve years old at the
time. When W.F. began having trouble breathing due to his asthma, they left the
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resort early one morning to return home. T.F. dropped appellant and A.M. off at the
house and took W.P. to the hospital to receive breathing treatments.
T.F. testified that her relationship with appellant had become very toxic and
that their fights had become more aggressive and she began to feel threatened. On
February 28, 2020, T.F. and the children left the home she shared with appellant.
T.F.’s mother, sister, and appellant’s mother and stepfather helped her move out of
the house while appellant was not home. A.M. was fourteen years old at the time.
On February 28, 2021, exactly one year after T.F. had left appellant, A.M.
disclosed to T.F. that appellant had sexually abused her. T.F. testified that A.M. was
shaking, crying, and hyperventilating when she made the disclosure. T.F. and A.M.
picked up W.P. from appellant, and T.F. contacted the Deer Park Police Department
to report A.M.’s disclosure. Shortly thereafter, Child Protective Services (CPS) and
the police began their investigations.
Detective J. Reed with the Deer Park Police Department was assigned to
investigate the case on March 1, 2021. He testified that appellant was thirty-six or
thirty-seven years old when he interviewed him. Detective Reed obtained A.M.’s
school records which reflected a very limited disciplinary history and mainly good
grades. Detective Reed testified that T.F. told him that the sexual abuse began on or
around February 3, 2018, when they returned from their trip to the Coushatta Resort
in Louisiana. Detective Reed interviewed appellant who confirmed that he watched
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A.M. on February 3, 2018, and that he was alone with her on numerous occasions.
Appellant’s employment records confirmed that appellant did not work on February
3, 2018.
A.M. testified that she was twelve years old when appellant, her stepdad, first
touched her inappropriately. The family had just returned from Louisiana so that her
mother could take A.M.’s brother, who was sick, to the doctor, while A.M stayed
home with appellant. A.M. testified that she asked appellant to bring her shampoo
while she was in the shower, and that after appellant brought it to her, he stood
outside the shower for five to ten minutes. After A.M. got out of the shower and
wrapped herself in a towel, appellant told her to lay down next to him on his bed
where he began touching her vagina over her towel. After ten minutes, he told her
to get dressed because her mother was on her way home. A.M. testified that she did
not tell her mother what had happened because every time she would try and talk to
her appellant would come into the room. A.M. testified that appellant touched her
vagina again on another day while her mother was at work.
On another occasion, A.M. was watching television with appellant while her
mother was at work and her brother was in his room. Appellant turned the television
off, got on top of A.M., pulled her shorts down, and put his mouth on her vagina.
A.M. testified that she was uncomfortable and tried to mentally block what was
happening to her. When asked what other memories she had, A.M. testified that
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“[a]fter that, it was just pretty repetitive.” When asked “how often would this
happen,” A.M. responded “”[e]very day or every other day,” and that it happened
more than fifteen times and occurred over a period of more than thirty days in
duration. On another occasion, A.M., her brother, T.F., and appellant were watching
a movie in bed when appellant began touching her vagina underneath the blanket.
A.M. also testified that when she was on the couch in the living room, appellant put
his penis in her mouth. A.M. testified that she told her mother that appellant had
touched her inappropriately one year after she, her mother, and her brother had
moved out of the house they shared with appellant.
Sharon Record, a certified pediatric sexual assault nurse examiner (SANE),
took A.M.’s medical history and examined her on March 9, 2021. The referral report
stated that “[A.M.] disclosed to her mother that between late 2017 and February of
2020, mother’s ex-boyfriend would touch and kiss all over her body after her shower
and he would have her perform oral sex on him and masturbate him.” Record
testified that A.M. told her that appellant touched her vagina with his hands and his
penis and touched her breasts with his hands, both over and under clothes. When
Record asked her how many times that happened, A.M. replied, “almost daily
between 2018 and 2020.” A.M. told Record that the first time occurred when she
was twelve years old and the last time occurred when she was fourteen years old.
A.M. told Record that appellant also made her “suck his private part and touch it.”
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When Record asked A.M. how many times that happened, A.M. replied, “[n]ot as
frequently as everything else but maybe once weekly he made me do things to him.”
After both sides rested, the jury found appellant guilty of the first-degree
felony offense of continuous sexual abuse of a child. Following the punishment
hearing, the trial court sentenced appellant to fifty years’ confinement. This appeal
followed.
Sufficiency of the Evidence
In one issue, appellant contends that the evidence is legally insufficient to find
beyond a reasonable doubt that he committed two or more acts of sexual abuse as
alleged in the indictment, namely aggravated sexual assault of a child, during a
period of more than thirty days in duration.
A. Standard of Review
We review appellant’s challenge to the sufficiency of the evidence under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we examine all
the evidence in the light most favorable to the verdict and determine whether a
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319. Evidence is insufficient under this
standard in four circumstances: (1) the record contains no evidence probative of an
element of the offense; (2) the record contains a mere “modicum” of evidence
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probative of an element of the offense; (3) the evidence conclusively establishes a
reasonable doubt; and (4) the acts alleged do not constitute the criminal offense
charged. See Jackson, 443 U.S. at 314, 318 n.11, 320; Laster v. State, 275 S.W.3d
512, 518 (Tex. Crim. App. 2009); Mottin v. State, 634 S.W.3d 761, 765 (Tex. App.—
Houston [1st Dist.] 2020, pet. ref’d).
The jury is the sole judge of the credibility of witnesses and the weight to give
their testimony, and our role on appeal is simply to ensure that the evidence
presented supports the jury’s verdict. Montgomery v. State, 369 S.W.3d 188, 192
(Tex. Crim. App. 2012). The jury may reasonably infer facts from the evidence
presented, credit the witnesses it chooses, disbelieve any or all the evidence or
testimony proffered, and weigh the evidence as it sees fit. Galvan-Cerna v. State,
509 S.W.3d 398, 403 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Canfield
v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)).
Inconsistencies in the evidence are resolved in favor of the verdict. See Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
“Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Each fact need
not point directly and independently to guilt if the cumulative force of all
incriminating circumstances is sufficient to support the conviction.” Nisbett v. State,
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552 S.W.3d 244, 262 (Tex. Crim. App. 2018). “On appeal, the same standard of
review is used for both circumstantial and direct evidence cases.” Hooper, 214
S.W.3d at 13.
B. Applicable Law
Penal Code Section 21.02(b) provides that a person seventeen years of age or
older commits the offense of continuous sexual abuse of a child if, during a period
of time thirty or more days in duration, the person commits two or more acts of
sexual abuse against a child younger than fourteen years of age. See TEX. PENAL
CODE § 21.02(b)(1), (2). An “act of sexual abuse” can be an act of aggravated sexual
assault or an act of indecency with a child, among others. See id. § 21.02(c)(2), (4);
see also id. § 22.021(a)(1)(B) (enumerating acts that constitute offense of aggravated
sexual assault, including causing penetration of child’s mouth by actor’s sexual
organ and causing child’s sexual organ, anus, or mouth to contact or penetrate
mouth, anus, or sexual organ of another person), § 21.11(a)(1) (defining indecency
of child as engaging in sexual contact with child or causing child to engage in sexual
contact). The State need not prove the exact dates of the abuse, only that “there were
two or more acts of sexual abuse that occurred during a period that was thirty or
more days in duration.” Buxton v. State, 526 S.W.3d 666, 676 (Tex. App.—Houston
[1st Dist.] 2017, pet. ref’d); Lane v. State, 357 S.W.3d 770, 773–74 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d) (stating that factfinder is not required to agree
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on exact dates that acts of sexual abuse were committed). Further, the jury need not
be unanimous about which two acts of sexual abuse constituted the crime so long as
they are unanimous that two acts occurred. See TEX. PENAL CODE § 21.02(d).
The uncorroborated testimony of a child victim is alone sufficient to support
a conviction for sexual assault of a child. TEX. CODE CRIM. PROC. art. 38.07(a);
Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
The State has no burden to produce any corroborating or physical evidence. Martines
v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see
also Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d,
206 S.W.3d 620 (Tex. Crim. App. 2006) (“The lack of physical or forensic evidence
is a factor for the jury to consider in weighing the evidence.”).
C. Analysis
Appellant contends that the evidence is insufficient to support his conviction
for continuous sexual abuse of a child because the State failed to establish that the
multiple instances of sexual abuse as alleged in the indictment, specifically
aggravated sexual assault of a child, occurred over a span of thirty or more days in
duration. He argues that, given the state of the evidence, the jury could have only
speculated about when the acts of aggravated sexual assault would have occurred
and if the acts of sexual abuse occurred during a period that was thirty or more days
in duration. The State responds that it was not bound by the indictment to prove only
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acts of aggravated sexual assault of a child. It argues that because the indictment
states that appellant committed two acts of sexual abuse, and A.M. testified to
multiple acts of sexual abuse over a period of two years, the evidence is sufficient to
support appellant’s conviction.
The indictment reads, in relevant part, that appellant
on or about February 3, 2018 and continuing through February 28,
2020, did then and there unlawfully, during a period of time of thirty
days or more 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 A.M. on or about February 3, 2018, and an act
constituting the offense of aggravated sexual assault of a child,
committed against A.M. on or about February 28, 2020.
The indictment alleges that appellant committed at least two acts of sexual abuse,
including an act constituting the offense of aggravated sexual assault.
A.M. testified that she was twelve years old when appellant first touched her
vagina over a towel after she had showered. This act constitutes indecency with a
child by contact. See TEX. PENAL CODE § 21.11(c)(1) (defining “sexual contact” to
include touching by person, including touching through clothing, of any part of
genitals of child, “if committed with the intent to arouse or gratify the sexual desire
of any person”). A.M. testified that appellant touched her vagina again on another
occasion. She also described an occasion when appellant placed his mouth on her
vagina and another instance when appellant put his penis in her mouth. See
§ 22.021(a)(1)(B) (enumerating acts that constitute offense of aggravated sexual
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assault, including causing penetration of child’s mouth by actor’s sexual organ and
causing child’s sexual organ to contact mouth of another person). A.M. testified that
appellant abused her more than fifteen times and that the abuse spanned more than
thirty days. Record, the SANE examiner, testified that A.M. reported that appellant
touched her inappropriately “almost daily between 2018 and 2020,” and that he
made her perform oral sex on him “maybe once weekly.” Record stated that A.M.
told her that the first time occurred when she was twelve years old, and the last time
occurred when she was fourteen years old. Although A.M. used the words “almost”
and “maybe” to describe the frequency of appellant’s abuse, a rational jury could
have inferred from the evidence presented that appellant committed more than two
acts of sexual abuse for a duration of more than thirty days. See Witcher v. State, 638
S.W.3d 707, 709–10 (Tex. Crim. App. 2022) (concluding that testimony about dates,
despite being described as “give or take” and “around,” provided legally sufficient
evidence to support conviction for continuous sexual abuse of a child); Turner v.
State, 573 S.W.3d 455, 461 (Tex. App.—Amarillo 2019, no pet.) (overruling
sufficiency challenge where evidence supported reasonable inference that appellant
committed two or more acts of sexual abuse over period of thirty days or more);
Lane, 357 S.W.3d at 774 (relying on testimony that abuse occurred in “fall” and
evidence showing hotel stays where abuse also occurred in late January and early
February to show that incidents occurred thirty or more days apart); Smith v. State,
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340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (accepting
September 22 as last day of summer 2007 for purposes of computing thirty-day or
more period where complainant described abuse as beginning during “the summer”
of that year); see also Garrett v. State, No. 14-22-00328-CR, 2023 WL 5111102, at
*4 (Tex. App.—Houston [14th Dist.] Aug. 10, 2023, pet. ref’d) (noting that although
complainant was vague about exact dates that sexual assaults occurred, courts “give
wide latitude to the testimony of child sexual abuse victims,” and “a child victim’s
description of what happened and when it occurred need not be expressed with the
same level of sophistication and detail that an adult might use”) (quoting Turner,
573 S.W.3d at 459). Further, A.M.’s testimony, standing alone, is sufficient to
support appellant’s conviction. See TEX. CODE CRIM. PROC. art. 38.07(a); Gonzalez,
522 S.W.3d at 57.
Viewing the evidence in the light most favorable to the jury’s verdict, the jury
reasonably could infer that appellant sexually assaulted A.M. during the incident that
occurred in the beginning of February 2018 and that more than two instances of
sexual abuse against A.M. occurred while she was between the ages of twelve and
fourteen that took place during a period of thirty days or more in duration. We
therefore hold that a rational jury could have found all the elements of this offense
beyond a reasonable doubt. We overrule appellant’s issue.
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Conclusion
We affirm the trial court’s judgment.
Amparo Monique Guerra
Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
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