Michael Paul Baker v. State

IN THE
TENTH COURT OF APPEALS
No. 10-10-00309-CR
MICHAEL PAUL BAKER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 33948CR
MEMORANDUM OPINION
A jury found Michael Paul Baker guilty of indecency with a child and assessed
his punishment at fifteen years’ imprisonment. This appeal ensued. In one issue, Baker
contends that the evidence is insufficient to support his conviction because “there was
insufficient evidence to prove that the complaint of behavior took place.” We will
affirm.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally 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 fact finder 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). This "familiar standard gives full play 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. "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." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793. Further, direct and circumstantial evidence are treated equally:
"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, 214
S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the
credibility of witnesses and can choose to believe all, some, or none of the testimony
presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
To prove Baker committed the offense of indecency with a child, as alleged in the
indictment, the State had to prove that Baker touched the genitals of the child with the
Baker v. State Page 2
intent to arouse or gratify his sexual desire. See TEX. PENAL CODE ANN. § 21.11(a)(1),
(c)(1) (West 2011).
The child, V.H., who was thirteen years old at the time of trial in August 2010,
testified that on February 10, 2009, she came home from school and fell asleep on the
couch in the living room watching television. She was still wearing her school clothes,
jeans and a shirt. Her mother was not at home, but Baker, her stepfather, was. When
she woke up, she felt pressure on top of her and shaking movement. Baker was on top
of her, she was no longer wearing her pants, and Baker was wearing no clothes. Baker
had moved her panties to the side, and his penis touched her vagina. V.H. pushed
Baker off of her and ran upstairs to her room with her pants and belt. She locked the
door, but Baker somehow got inside. Baker told her not to tell her mom, that he was
sorry, and that he would do whatever it took for her not to tell anyone what happened.
When V.H.’s mother came home, V.H. told her that she needed to talk to her. V.H.’s
mother went into V.H.’s room, but V.H. could not talk to her. V.H. then wrote her
mother a note, telling her what had happened. The note was admitted into evidence.
V.H.’s mother testified that when she got home on the evening of February 10,
V.H. wanted to talk to her, so they went upstairs to V.H.’s room. V.H. was “very
uneasy” and unable to verbalize what had happened. Baker came to the door of the
room several times while V.H. was trying to talk to her. Ultimately, V.H. wrote her
mother the note (as referenced above by V.H.). V.H.’s mother stated that she then
confronted Baker about the accusation. Baker said that he did not touch V.H. He only
covered her up and tucked a blanket around her.
Baker v. State Page 3
V.H.’s mother testified that V.H. had told her on a prior occasion that Baker
made her feel uncomfortable. V.H. had told her mother that Baker was coming into her
room at night and staring at her. V.H.’s mother told V.H. that she would talk to Baker
about it and make sure it did not happen again. When V.H.’s mother talked to Baker
about it, Baker told her that he was just making sure everything was turned off and
would not go in there again if it made V.H. uncomfortable.
V.H.’s mother also testified about her “rocky” relationship with her ex-husband,
V.H.’s father. When asked if she believed he had pressured or manipulated V.H.
“concerning this whole thing,” she replied that it was “very possible.” She stated that
prior to V.H.’s accusation, her ex-husband had threatened her with going back to court
to “get” V.H. V.H.’s mother also testified that at the time of trial, she was continuing to
live with Baker because she still loved him.
The State also called Ray Clayburn, Jr., who was serving a prison sentence for
burglary of a habitation, to testify. Clayburn stated that he and Baker were in the Ellis
County jail together in March 2009. Baker told him that he was in jail for the
aggravated sexual assault of his stepdaughter and that he did not understand why she
was telling anybody “this time.” Baker told him that he had touched V.H. and “done
things” before and she had never said anything. Clayburn said he was not receiving
anything for his testimony.
Baker testified in his own defense and denied the allegations. Baker stated that
he picked V.H. up from school and asked her if she wanted to go to “grandma and
grandpa’s” or if she wanted to go “home.” V.H. replied that she wanted to go home.
Baker v. State Page 4
Baker told her that was fine but that when they got home, he was going straight to bed
because he had been up since midnight. When they arrived home, Baker went upstairs
to his bedroom and put on his pajamas and a T-shirt. V.H. was sitting downstairs in the
living room. Baker went downstairs and sat in his recliner until he fell asleep. V.H. was
watching television.
At some point, V.H. woke Baker up and told him that she was hungry. He made
her breakfast and then went back to sleep in the recliner. Baker later woke up again
when he felt discomfort in his finger, as he had recently had hand surgery to repair an
injury. He went into the kitchen and got a drink, and on his way out of the kitchen, he
took a blanket and threw it over V.H., who was now asleep. Baker then went upstairs
to his bedroom and got a cigarette.
Baker went outside and smoked the cigarette, and, when he came back in and
was making his way up the stairs, he heard V.H. slam her door. Baker went over to the
door, knocked, and asked what was wrong. V.H. replied that she did not want to talk
about it. Baker then went back to his room and lay down. About 45 minutes later, his
wife arrived home. After talking to V.H., Baker’s wife confronted him with V.H.’s
allegation. Baker stated that he believed V.H. may have been coerced into making the
allegation by her father to influence custody.
Baker argues,
Appellant would show the Court that the only evidence in this case
having to do with the allegation is the testimony of the child and the note.
There is no corroborating testimony and there is no corroborating
evidence. There is no medical proof. There is no DNA proof. There was
Baker v. State Page 5
no penetration. The verdict cannot be sustained based upon this
insufficiency.
Baker states that the following five cases support his argument: Nelson v. State, 505
S.W.2d 551 (Tex. Crim. App. 1974); Hulsey v. State, 211 S.W.3d 853 (Tex. App.—Waco
2006, no pet.); Stewart v. State, 933 S.W.2d 555 (Tex. App.—San Antonio 1996, pet. ref’d);
Kimberlin v. State, 877 S.W.2d 828 (Tex. App.—Fort Worth 1994, pet. ref’d); and Friedel v.
State, 832 S.W.2d 420 (Tex. App.—Austin 1992, no pet.). These cases are all
distinguishable.
In Nelson, the court held that the testimony, “He rubbed my chest,” was
insufficient proof to sustain the averment in the indictment that Nelson did “place his
hand against the breasts” of the child. Nelson, 505 S.W.2d at 552. The court reasoned
that the definition of “chest” is broader than the definition of “breast” and includes a
larger area of the body than that encompassed by the latter; therefore, the testimony
was insufficient to identify the area of the body alleged to have been violated by the
accused. Id. Here, there is no question that V.H. specifically described the body parts
alleged in the indictment. The indictment alleged that Baker did “intentionally or
knowingly engage in sexual contact with [the child], by touching the genitals of [the
child],” and V.H. testified that Baker’s penis touched her vagina.
In Hulsey, this court held that the evidence was insufficient to establish that
Hulsey committed the offense of indecency with a child by contact when the child
testified that, “a couple of times, Hulsey tried to place her hand on his penis, but she
Baker v. State Page 6
always pulled her hand back.” Hulsey, 211 S.W.3d at 858-59. Here, V.H. did not testify
that Baker tried to touch her genitals; she said that he did touch her genitals.
In Kimberlin, the court held that the evidence was insufficient to support
Kimberlin’s aggravated sexual assault conviction. Kimberlin, 877 S.W.2d at 829. The
court noted that a child victim’s outcry statement alone can be sufficient to sustain a
conviction for aggravated sexual assault. Id. at 831. “There is no requirement that
properly admitted outcry testimony be corroborated or substantiated by the victim or
independent evidence.” Id. at 832. The evidence, including the outcry statement and
the child’s testimony at trial, was insufficient, however, because it proved only that
Kimberlin was present or assisted when her co-defendant sexually assaulted the victim,
and no law of parties charge was given. Id. at 832-33. Here, V.H.’s testimony
established that Baker committed the offense of indecency with a child.
In Stewart, the court held that the evidence was insufficient to support Stewart’s
conviction for sexual assault of a child because the child’s testimony at trial was not
corroborated, she had not made an outcry within six months of the date of the alleged
offense, and the great weight and preponderance of the testimony showed that the
offense occurred after the child had reached fourteen years of age. Stewart, 933 S.W.2d
at 556-57. At the time, article 38.07 of the Code of Criminal Procedure stated:
A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the
defendant, of the alleged offense within six months after the date on
which the offense is alleged to have occurred. The requirement that the
victim inform another person of an alleged offense does not apply if the
victim was younger than 14 years of age at the time of the alleged offense.
Baker v. State Page 7
Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 7, 1983 Tex. Gen. Laws 5311, 5319; Act of
May 26, 1983, 68th Leg., R.S., ch. 382, § 1, 1983 Tex. Gen. Laws 2090, 2090-91. Similarly,
in Friedel, the court held that the evidence was insufficient to support Friedel’s
aggravated sexual assault conviction because the only evidence that connected Friedel
to the alleged offense was the uncorroborated testimony of the fifteen-year-old victim,
and she had not informed another person of the alleged sexual assault for
approximately eighteen months. Friedel, 832 S.W.2d at 421.
At the time of Baker’s alleged offense, article 38.07 stated:
(a) A conviction under Chapter 21, Section 22.011 or Section 22.021,
Penal Code, is supportable on the uncorroborated testimony of the victim
of the sexual offense if the victim informed any person, other than the
defendant, of the alleged offense within one year after the date on which
the offense is alleged to have occurred.
(b) The requirement that the victim inform another person of an
alleged offense does not apply if at the time of the alleged offense the
victim was a person:
(1) 17 years of age or younger;
(2) 65 years of age or older; or
(3) 18 years of age or older who by reason of age or physical or
mental disease, defect, or injury was substantially unable to satisfy the
person’s need for food, shelter, medical care, or protection from harm.
Act of May 23, 2001, 77th Leg., R.S., ch. 1018, § 1, 2001 Tex. Gen. Laws 2234, 2234
(current version at TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2011)). V.H.
testified that she was thirteen years old at the time of trial, making her twelve years old
at the time of the offense. V.H.’s, her mother’s, and Baker’s testimony also all
established that V.H. informed her mother about the offense on the date that it allegedly
occurred. Thus, V.H.’s testimony did not need to be corroborated to be sufficient to
Baker v. State Page 8
support Baker’s conviction. See Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco
2006, pet. ref’d).
The jury is the exclusive judge of the facts, the credibility of the witnesses, and
the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). As the reviewing court, we “should
not substantially intrude upon the jury’s role as the sole judge of the weight and
credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App.
2002). Here, by finding Baker guilty, the jury obviously believed V.H.’s testimony and
rejected Baker’s testimony. Viewing all the evidence in the light most favorable to the
verdict, we conclude that a rational trier of fact could have found Baker committed the
offense of indecency with a child by contact beyond a reasonable doubt. We overrule
Baker’s sole issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 23, 2012
Do not publish
[CR25]
Baker v. State Page 9