John Tufts v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00143-CR
___________________________
JOHN TUFTS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 211th District Court
Denton County, Texas
Trial Court No. F18-3014-211
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant John Tufts appeals his three convictions for injury to a child. In six
issues, Tufts argues that (1) the evidence is insufficient to support the jury’s verdict of
injury to a child by omission causing serious bodily injury; (2) the evidence is insufficient
to support the jury’s verdict of injury to a child by contact; (3) the trial court abused its
discretion by finding the complainant child in this case, Madison,1 competent to testify;
(4) the trial court abused its discretion by allowing a witness to testify regarding what
Madison had told the witness; (5) his double jeopardy rights have been violated; and
(6) the trial court abused its discretion by ordering that two of his sentences run
consecutively. We affirm.
II. BACKGROUND
A. Madison’s Upbringing in Poland
This case stems from injuries that Madison sustained on August 9, 2016. About
one month after Madison was born, she was placed in a foster home in Poland as a
result of parental abuse and neglect. Approximately a year later, her birth mother had
Mia, who was immediately removed from her birth parents and placed in the same
Because the complainant in this case was a minor at the time the offenses
1
charged were committed, we use aliases when possible throughout this opinion to
protect her identity. See Tex. R. App. P. 9.10(a)(3); 2nd Tex. App. (Fort Worth) Loc.
R. 7.
2
Polish foster home as Madison. Madison and Mia lived in the foster home with six to
seven other foster children, all of whom were under the age of four.
The environment within the foster home was not a warm one, and Madison and
Mia did not receive a great deal of caring attention from the adults who were operating
the home. As a result, they were not exposed to much physical or sensory stimulation,
which led them to acquire certain developmental deficiencies, such as being
overstimulated by ordinary sounds in the world outside the foster home and having low
muscle tone, which caused both children to experience significant difficulties with
walking and other motor skills. And because the caretakers of their foster home were
all female, Madison and Mia were hesitant and standoffish toward males.
Madison had also developed certain behavioral issues. Those issues included
experiencing high anxiety and throwing tantrums whose severity went beyond the norm
for a child of her age. In addition, Madison had taken on an unhealthy “parentified”
role toward Mia, which meant that given the neglectful environment in which they were
living, Madison had assumed the role of protecting and caring for Mia, and she would
challenge any adult who tried to take on those responsibilities. Madison also routinely
engaged in masturbation, a behavior that is apparently common in children from the
kind of neglectful background that Madison and Mia had experienced.
B. Madison’s Unusual Adoption
Shortly before Madison was born, Amy and Glenn, who lived in Utah with their
three boys, decided they wanted to add to their family by adopting a child. Amy and
3
Glenn wanted to adopt a girl, and they eventually decided to pursue an international
adoption, focusing specifically on adopting a child out of Eastern Europe. They
connected with European Adoption Consultants (EAC), an adoption agency that had
adoption programs in several countries, including Poland.
Although they had originally indicated that they sought to adopt only one child,
Amy and Glenn’s consultant at EAC contacted them in 2015 to ask whether they would
be willing to adopt two children. Initially, Amy and Glenn were not interested, as they
did not believe they could handle adopting more than one child given that they already
had three children. But when the adoption consultant gave them some information
about the two children, they decided to move forward with the process to see if the
children might be a good fit for their home. Those two children were Madison and
Mia.
Amy and Glenn traveled to Poland, got a temporary apartment, and met Madison
and Mia. For a few weeks, Madison and Mia lived with Amy and Glenn at their
temporary apartment. In total, Amy stayed in Poland for about six weeks, while Glenn
took a two-week break during that period to return home and check on their three
children. While they were in Poland, Amy and Glenn noticed that Madison and Mia
exhibited the general developmental deficiencies and behavioral issues described above.
Relevant to this case, Amy and Glenn were able to observe Madison’s intense
tantrums, her “parentified” relationship with Mia, and her self-stimulation. The
tantrums were difficult for Amy and Glenn to manage. For example, whenever they
4
would walk around the city with Madison and Mia, Madison would fall to the ground
and purposely urinate. And when Madison threw herself to the ground during a
tantrum, she would sometimes sustain bruises to her lower legs. At times, Madison
would try to get out of a moving car, and Amy and Glenn would have to physically
restrain her. Madison would also scream at the top of her lungs, often for hours at a
time. These tantrums sometimes led Amy and Glenn to cut their outings short and
return to their apartment.
Regarding Madison’s self-stimulation, Amy and Glenn had learned from their
adoption classes that this behavior was common in children who had been neglected.
In Madison’s case, Amy and Glenn observed that she generally engaged in that behavior
at night before bed and in the morning after she awakened. They also noted that she
would do so in a particular way: she would lie face down on the bed, place her hands
by her genitals outside of her clothing, and gently rub. Neither Amy nor Glenn ever
saw Madison insert an object inside of her genitals while masturbating.
As their time with Madison and Mia progressed and they experienced Madison’s
challenges first-hand, Amy and Glenn began to question whether they would be able to
provide the level of care and support that Madison would need in order to thrive, which
led them to grow concerned about whether they would be able to adopt both Madison
and Mia. Amy and Glenn then took the children to see a doctor, something that was
part of the international adoption process. The doctor performed a physical
examination of both girls, which did not reveal signs that either girl had suffered abuse
5
of any kind. Amy and Glenn talked to the doctor about Madison’s behavioral issues.
The doctor informed them that in cases like Madison’s, in which a child has assumed a
“parentified” role over a sibling, it was not uncommon to place the children in separate
homes.
Amy and Glenn ultimately decided that although they wanted to proceed with
adopting Mia, they would be unable to care for Madison. They contacted the adoption
agency they were working with in Poland to find out what their options were and
learned that they would either have to adopt both children or leave both of them in
Poland. Amy and Glenn did not want to leave the girls in Poland, and they believed
that both girls would live better lives in the United States. So they decided to adopt
both girls. But in doing so, they continued to believe that because of the challenges
posed by Madison’s behavioral issues, it would ultimately be better for her to be placed
in another adoptive home.
Based on the advice of the adoption workers in Poland, Amy and Glenn moved
forward with adopting Madison and Mia but did not inform the Polish legal authorities
involved in the adoption that they intended to have another family adopt Madison after
they returned to the United States. Amy and Glenn additionally contacted EAC to find
out whether the agency was aware of any family in the United States that would be a
good fit for Madison and would be available to adopt her from them upon their return
to the United States. They were provided with three families who were available to take
Madison in the United States.
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One of those families was Tufts and his then-wife, Gabby, who at the time had
a single, four-year-old child, Taryn. Amy and Glenn ultimately chose to have Madison
placed with them. After selecting Tufts and Gabby, Amy and Glenn learned that Tufts’s
mother, Diana, happened to work for EAC in South Carolina. While Amy and Glenn
never spoke to Tufts or Gabby, they did speak with Diana and told her about the issues
they had been having with Madison. Diana then informed Tufts and Gabby that a little
girl might be coming to the United States who would be placed with them. About two
weeks later, Amy and Glenn, with newly adopted Madison and Mia in tow, started their
journey from Poland back to Utah.
On the way back to Utah, they stopped at the Dallas/Fort Worth International
Airport, landing there on July 4, 2015. They were met in the baggage claim area by
Diana, another person who was a notary, and, unbeknownst to them, Gabby. Diana
and Gabby took Madison aside to distract her, and the notary took Amy and Glenn to
a different area to sign paperwork. After the paperwork was signed, Amy, Glenn, and
Mia went back inside the airport terminal to board their connecting flight to Utah.
Diana and Gabby left the airport with Madison and a small backpack that Amy
and Glenn had provided for Madison. Among other items, the backpack had a journal
inside, in which Amy had written information about what they had learned about
Madison during their time in Poland. Madison was four years old at the time.
Tufts and Gabby were given only about two weeks’ notice that Madison might
be placed in their home. At that point, they had not gone through the typical process
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for such placements: they had not been adequately vetted, had not received training,
had not undergone a home study, and had not established post-placement supervision.
But by February 2016, they had undergone a home study, had taken appropriate steps
to accomplish a domestic adoption of Madison, and had formally adopted her.
C. Madison’s Presence Leads to Stress in the Tufts’s Home
In the immediate aftermath of Madison’s July 4, 2015 placement with Tufts and
Gabby, she appeared to be doing well. But her behavior deteriorated over time, and
Tufts and Gabby found her more difficult to manage. Allegedly, Madison began acting
out and throwing intense tantrums, including tantrums that sometimes involved being
physically aggressive toward Taryn.
Gabby worked at a boutique a couple of days a week, and her hours were
generally from 4:00 p.m. to 9:00 p.m. While she was at work, Tufts would watch Taryn
and Madison. On several occasions when Gabby left for work, Madison would seem
fearful of Tufts. There were also times that Gabby would return home from work after
Madison had gone to bed, and then the next morning she would discover that Madison
had an injury. Those injuries included a black eye or a fattened lip. Gabby assumed
these injuries were occurring because Madison was running into something in her room
at night, such as her nightstand.
A couple of months before they finalized their adoption of Madison in February
2016, Tufts and Gabby told Gabby’s sister, Xenia, that assimilating Madison into their
family had been more difficult than they had expected and that it had been an expensive
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and stressful endeavor. In addition to their difficulties managing Madison, Tufts and
Gabby had financial trouble, Gabby went through some health challenges, and Tufts
and Gabby’s marriage relationship became strained. The cumulative stress in the
couple’s home became concerning to Xenia, so a short time before Tufts and Gabby
finalized their adoption of Madison, Xenia offered to help them by keeping Madison
for some time and essentially co-parenting her with them. And to help alleviate the
strain Tufts and Gabby were under, Xenia also offered to share with them the expenses
related to raising Madison.
As their time with Madison progressed, Tufts and Gabby gradually grew more
frustrated with her. In July 2016, Tufts reached out to Dr. Michele Greer, a
psychotherapist whose practice focused on treating children with certain behavioral
issues. On July 28, 2016, Tufts and Gabby met with Greer and explained the difficulties
they were having with Madison.
According to Greer, the main reason Tufts and Gabby came to see her was
“[t]hat the child was having trouble following directions, was being what they
considered oppositional, that she would zone out and shut down when given
instructions, [and] that she was masturbating and having some other acting-out
behaviors with the parents.” They told Greer that Madison had been diagnosed with
reactive attachment disorder and that Madison would try to get attention by
purposefully hurting herself by banging her head or throwing herself to the ground.
9
Tufts and Gabby further mentioned that Madison had been masturbating “all
the time,” and they said that they had been taping her hands at night when she was in
bed to prevent her from doing so. Greer did not specialize in treating children with
reactive attachment disorder, so she made it clear to Tufts and Gabby she would not
be able to treat Madison, and it would be better for her to see a specialist. Greer did,
however, offer to counsel Tufts and Gabby, so the couple scheduled a follow-up
appointment.
In May 2016, Diana had decided to move to Texas to help Tufts and Gabby take
care of Madison. By June 2016, Diana had purchased a house nearby, and by August
2016, she was preparing to move to Texas. Diana planned to have completed her move
to Texas by mid-August.
D. August 9, 2016: Madison is Injured
Although Greer had indicated that she would not be able to treat Madison and
had referred her to a specialist, Tufts called Greer’s office several times on August 9,
2016, and spoke with her office coordinators. Tufts told them that Madison’s behaviors
had escalated and that she had been hurting herself.
Around 3:30 p.m. that afternoon, Gabby went to work, leaving Tufts to take care
of Taryn and Madison. Sometime later, while she was still at work, Gabby called Tufts
to check on the girls. According to Gabby, Tufts sounded frazzled and shocked, telling
Gabby that Madison had gotten hurt and that he would have to call her back.
10
At around 7:17 p.m., Tufts called Diana and sounded panicked. He told Diana
that he had been giving Madison a bath and had left to go check on Taryn, who was
showering in another bathroom. Tufts said that when he came back to check on
Madison, she had stuck an Elsa2 doll in her vagina. And he told Diana that Madison
appeared to be zoned out and that there was blood in the bathtub. Diana reported to
a CPS worker that Tufts had said that he removed the doll from Madison’s vagina, but
at trial, Diana averred that she had not reported that. Diana asked Tufts to send her a
picture of the doll, and he texted a picture to her. When Diana saw the picture, she
told Tufts to call Gabby and to then take Madison to the emergency room.
A little while later, Tufts texted the photograph he had taken of the doll to
Gabby. The photograph showed the legs of a doll, and the legs had blood on them.
Gabby called Tufts and asked him what had happened, and Tufts told her that Madison
had hurt herself with her Elsa doll. Tufts elaborated, stating that Madison had been in
the shower, that he had gone in to check on her, and that when he did, he found that
the doll was stuck inside of her vagina.
Tufts told Gabby that Madison was doing okay. At trial, Gabby told the jury
that later that evening, she returned home, went to Madison’s bedroom, and opened
the bedroom door. She saw that Madison was asleep, and because Tufts had told her
2
The record reflects that Madison had a Barbie doll modeled after Elsa, a
character in the Disney film Frozen.
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that Madison was no longer bleeding, Gabby did not want to wake her. So Gabby left
Madison sleeping.
E. August 10, 2016
The next morning, Tufts went to work, while Gabby remained home with Taryn
and Madison. Gabby noticed that Madison was in pain, and Madison told Gabby that
she did not feel well. Still, Gabby did not check the injured area. But she did notice
that there was a blood stain on Madison’s panties. So Gabby got a clean pair of panties
for Madison, placed a panty liner inside, and put them on Madison. According to
Gabby, she added the panty liner so that she could see if any further discharge came
from Madison’s injury, and if it did, she could arrange for Madison to see a doctor.
Additionally, because Madison had complained that she was in pain, Gabby gave her
Tylenol. Tufts called Gabby to check in, and Gabby told him about the blood on
Madison’s panties.
Tufts’s Interactions with Dr. Amy Curtis
At some point after Madison was injured on August 9, 2016, and before the early
afternoon of August 10, 2016, Diana contacted Dr. Amy Curtis, who was the director
of counseling at Buckner Children & Family Services, stating that EAC had placed a
child in the Dallas/Fort Worth area and that she needed emergency assistance with that
family. Diana was acquainted with Curtis because they had previously worked together
at an adoption agency in Fort Worth. When Curtis returned Diana’s call, Diana told
her that Madison had been masturbating to the point of bleeding. Curtis expressed that
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she was willing to assist with counseling regarding the situation but that Tufts would
have to contact her. Curtis also related to Diana that the incident would need to be
reported to Child Protective Services (CPS).
Curtis received a phone call from Tufts, who spoke with a sense of urgency.
Tufts told Curtis that Madison had been sexually abused in Poland, that she reported
that she had slept in a cage in Poland, and that people had done bad things to her in
Poland. Tufts also told Curtis that Madison had been masturbating and that he had not
been able to stop her from doing so. He also referenced the August 9, 2016 incident
with the doll, indicating that Madison had been masturbating in the bathtub to the point
of bleeding. Tufts asked Curtis to provide counseling services to Madison.
Following her phone conversation with Tufts, Curtis sent him a text message at
approximately noon that outlined the counseling plan they had established. Tufts
responded with a text message asking a question related to the billing for Curtis’s
services. These messages set off a series of messages between Tufts and Curtis that
lasted a few days. In the messages, Tufts indicated to Curtis that Madison was actively
bleeding from her injuries and that he had delayed taking Madison to the hospital.
Curtis said that she found the content of Tufts’s texts concerning because it appeared
to her that Tufts was more concerned with how Madison’s injuries impacted him rather
than seeking medical care for her and that when medical care was in fact sought, Tufts
expressed his own concerns over how CPS and authorities might perceive him.
According to Curtis, Tufts also seemed to be building a defense for himself because he
13
continually referenced abuse that allegedly occurred to Madison in Poland. Curtis
reported the content of her calls and texts to CPS.
Tufts’s Interactions with Dr. Susan Torrie
Tufts and Gabby had established pediatric care for Madison at one of Cook
Children’s pediatric offices in Denton a few months after she had been placed with
them in July 2015. At approximately 2:30 p.m. on August 10, 2016, Tufts called the
pediatrician’s office and stated that Madison had inserted a doll into her vagina and
rectum, that she had been bleeding for several hours, and that she had been complaining
of pain. Tufts also related that Madison had an extensive history of sexual abuse when
she lived in Poland. Dr. Susan Torrie, a pediatrician at the office, referred Madison to
the Cook Children’s or Dallas Children’s emergency room. Tufts stated that he was
going to call Gabby to find out whether she wanted to take Madison, and he said that
he would let Torrie’s office know which emergency room was chosen once that decision
had been made.
Tufts called Torrie’s office again at approximately 4:30 p.m. and stated that
Madison’s bleeding had stopped and that instead of going to the emergency room, he
wanted to bring Madison in for a checkup at the pediatric office the following day.
Torrie scheduled an appointment for Madison for 1:25 p.m. on August 11, 2016, but
she told Tufts to take Madison to the emergency room if the bleeding resumed. Tufts
voiced his understanding, and he also commented to Torrie that he thought it would
look better if Gabby brought Madison to the appointment instead of him.
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Tufts’s Further Interactions with Dr. Michelle Greer
At some point on August 10, 2016, Tufts called Greer’s office again and left a
message stating that while Madison was in the bathtub, she had inserted a doll into her
vagina to the point of bleeding. By the time Greer was able to return that call, Tufts
had already scheduled an appointment for Madison with Torrie. During that call, Tufts
elaborated on the message he had left earlier, stating that he had caught Madison
inserting a doll into her vagina and rectum and that after he had caught her, she had
thrown herself down and started thrashing around in the tub. He told Greer that as a
result, Madison had suffered bruises on her body, a fattened lip, and marks on her face.
Tufts also volunteered that during the previous night, Madison had called out to him
and had hit herself in the eye, causing swelling and marks. Much like Curtis had averred,
Greer testified at trial that Tufts left her with the impression that he was more
concerned with documenting the injuries than he was for Madison’s care. Specifically,
Greer said that “he was calling with information that was not given to us because he
was concerned about what he -- what -- what someone might think his involvement
might be.”
Greer advised Tufts to seek immediate medical attention for Madison. But Tufts
told Greer that immediate medical attention was not necessary and that he had
scheduled an appointment for Madison to be seen at the pediatrician’s office the
following day. And according to Greer’s notes of the conversation, Tufts told her that
he was concerned he would be accused of causing the injuries to Madison. Greer’s
15
notes also reflect that Tufts reported that Madison had said that when she was in
Poland, she had been kept in a cage and that her foster father in Poland would stick his
fingers, as well as objects, in her vagina.
F. August 11, 2016
Pediatric Appointment
Gabby took Madison to her August 11, 2016 appointment with Torrie. And in
speaking with a nurse before seeing Torrie, Gabby provided the nurse with additional
information regarding Madison. Among the new information Gabby provided was a
statement that approximately a week before, Madison had inserted a doll into her vagina
and had inserted a Hot Wheels car into her rectum. Gabby said that they had spoken
with a counselor about it.
Regarding the August 9, 2016 injury, Gabby stated that Madison had been
bleeding off and on and that she was having to place a panty liner in Madison’s
underwear to manage the bleeding. Gabby additionally stated that Madison had been
hurting herself by purposely hitting herself, by throwing herself into her nightstand, and
by throwing herself into the fireplace. Gabby said that Madison had a history of
repeatedly hitting her head when she was in Poland. And Gabby reported that these
behaviors had escalated over the previous month.
When Torrie came into the room, Gabby told her additional information about
the circumstances surrounding their visit. Gabby told Torrie that Madison had a history
of physical and sexual abuse when she lived in Poland and that she masturbated, a
16
behavior that had increased over the previous month. Regarding the August 9, 2016
incident, Gabby said that when Madison woke up the next morning (August 10), there
was blood everywhere, and she also stated that the wound had been continuously
oozing.
During the appointment, it did not seem to Torrie that Madison was
experiencing any pain or discomfort. Based on the information she had been provided,
when Torrie examined Madison, she expected to see only some superficial cuts. But
when Torrie looked at the injured area, she was so shocked by its severity that she asked
her nursing staff to stand back. Although she did not notice any bleeding, Torrie did
see lacerations on Madison’s labia and bruises on her perineum. And after concluding
that she would not be able to sufficiently treat Madison’s injury in her clinic, Torrie told
Gabby to take Madison to the Cook Children’s emergency room.
Emergency Room Visit
Gabby left Torrie’s office with Madison, went to pick up Tufts and Taryn, and
then took Madison to the Cook Children’s emergency room. A triage nurse visited with
Madison and obtained a history of the events that had led to Madison’s emergency
room visit. The nurse recorded that Gabby had stated Madison repetitively
masturbated with objects, including a doll and a Hot Wheels car, and that she was seeing
a counselor. The nurse further recorded that Gabby said Madison had engaged in that
behavior a few times but that after the August 9, 2016 incident, the bleeding would not
17
stop in her vaginal area. The nurse noted that Madison was not experiencing pain and
was “smiling, active, and playing.”
The nurse also recorded that Madison had bruises on her face. Gabby told the
nurse that Madison engaged in self-harming behavior and that Madison told her that
she threw herself into her nightstand. But Gabby added that she had never seen
Madison hurt herself and that she and Tufts did not know about the bruises until the
morning. Gabby additionally said that Madison had a large bruise on her back and
buttocks, which she said had resulted from Madison’s falling down the stairs. The triage
nurse recorded Madison’s chief complaint as sexual abuse.
After Madison had been triaged, Dr. Doreen Teoh, an emergency medicine
physician at Cook Children’s Hospital, went in to see her. Tufts and Gabby provided
Teoh with additional information concerning Madison’s bruises. They said that
Madison would cause bruises to herself and then exacerbate their severity by pressing
down hard on them. The couple indicated that Madison was seeing a counselor, and
the counselor had stated that these behaviors were attention-seeking in nature.3 And
they explained Madison’s adoption and stated that she had been physically and sexually
abused when she was in foster care in Poland. Tufts and Gabby added that Madison’s
birth mother had consumed alcohol throughout her pregnancy with Madison.
3
There is no evidence in the record that Madison ever saw a counselor while in
Tufts and Gabby’s care.
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Teoh examined Madison. She noticed that there was mucus and dried blood
throughout Madison’s genital area, and the wound was actively bleeding. Madison also
had a laceration that extended from her vagina, through her perineum, and into her
rectum. During trial, Teoh explained the injury in layman’s terms as follows:
So you have a -- your urethra, where you urinate out of, in the front. Then
you have the vagina. And then the rectum is below that. You know, going
from front to back. And so there -- you know, these are all distinct holes.
There is, you know, no connection between these holes. But when I
examined [Madison], you know, there was . . . this laceration or a created
connection between the vagina and the rectum.
She also elaborated on the severity of this injury by comparing it to tears that occur
during childbirth. Teoh stated that on a scale of severity, a tear that went from the
vagina to the rectum, called a fourth-degree tear, was the most severe that could occur
and that even childbirth rarely resulted in that kind of tear. Teoh told the jury that in
her eighteen years of practice, she had never seen a tear with the degree of severity of
Madison’s except in medical textbooks. When asked by the prosecutor whether the
delay in Madison’s receiving treatment could have caused a “life-threatening infection,”
Teoh said, “It’s possible.”
Suspicious that Madison’s injury could not have occurred the way Tufts and
Gabby had explained, Teoh alerted Cook Children’s Child Advocacy and Resource
Evaluation (CARE) Team, which specializes in treating abused children. She also
notified a social worker and instructed them to contact CPS. And due to the severity
of Madison’s injury, Teoh referred her for immediate surgery.
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Dr. Jose Iglesias, a pediatric surgeon at Cook Children’s Hospital, was the
surgeon who operated on Madison. Before operating on Madison, Iglesias received a
brief overview of Madison’s injury from Tufts and Gabby, who told him that Madison
had used a doll while masturbating and had caused some bleeding. When he was able
to examine Madison more comprehensively in the operating room, Iglesias realized that
Madison had sustained the fourth-degree tear, an injury that he testified was “very rare.”
In fact, it was one of the worst injuries he had ever seen in his eighteen years as a
pediatric surgeon.
Iglesias surgically repaired the injury. To ensure that Madison did not develop
fistulas, that the surgical repair did not break down, and that the wound did not become
infected, he had to perform a colostomy, which he explained was a procedure where he
brought out a loop of Madison’s intestines so that she would defecate into a bag.
Iglesias explained the difficulty of the procedure he performed on Madison’s injury:
So this is basically a complex repair, which means putting together a lot of
different tissues. It was a repair of the vagina, so putting back together
the -- the female external genitalia, putting together the soft tissues and
the muscles kind of between the rectum and vagina, and then putting back
together the front part of the sphincter that was torn around the anus.
Sphincters are -- are round muscles that open and close, hopefully in a
timely fashion. So that’s -- that sphincter had basically been torn to a C,
so I had to kind of reclose that to -- to make it a complete circle again so
that it would be functional.
Iglesias concluded that the injury could not have occurred the way Tufts and
Gabby had said because a five-year-old child self-stimulating with a doll was
inconsistent with the level of force that would have been necessary to cause the injury
20
Madison had sustained. Regarding the amount of force, Iglesias said, “It’s hard to
quantify that, but it would have taken a lot, a significant amount of force or a very large
object, you know, with some -- with -- with a -- with a good amount of force, too.”
Iglesias said that the initial injury “would have been incredibly painful and [that] it would
have been very uncomfortable even after the acute episode of the irritation of a raw,
you know, several-centimeter injury getting an irritant, urine, and stool, on it a few times
a day.” He said that the injury “would have bled a lot” and that he would “[a]bsolutely”
consider the injury Madison sustained as a serious bodily injury.
Iglesias told the jury that had Madison been brought for medical treatment
immediately, he “would have probably been able just to [close the wound] and avoid
the colostomy.” He also said that the two-day delay in failing to seek medical care
“confirmed the fact that [he] had to do” the colostomy.
G. August 13, 2016
On August 13, 2016, Christi Thornhill, a sexual assault nurse examiner who was
a member of the Cook Children’s CARE Team, was called in to review Madison’s case.
Thornhill reviewed the records related to Madison’s case, including photographs of her
injuries. Based on that review, Thornhill noted that in addition to the severe injury to
Madison’s genitalia, Madison had sustained bruises all over her body that were in
various stages of healing.
Thornhill spoke to Gabby about Madison’s injuries. Gabby related that on the
night of the injury, Tufts had called her and said that Madison had put a doll inside of
21
her. She also said that Tufts told her that Madison had thrown herself down and
flopped around in the bathtub. According to Thornhill, Gabby said that after she
returned home from work on August 9, she woke Madison to check on her. Gabby
said that Madison complained of pain and that there was blood oozing from her
genitalia. Gabby told Thornhill that when Madison continued to have oozing and
discomfort the next day, she and Tufts had called her pediatrician’s office but were not
able to get her in to be seen until the following day.
Gabby also told Thornhill that Madison had a history of self-harming behavior,
as well as a history of excessive masturbation with objects. But Gabby added that she
had never personally seen Madison engage in these behaviors; rather, she only saw the
results of those behaviors, such as the bruises. Gabby said that although she never saw
those behaviors first-hand, she learned they were occurring from Madison herself.
Gabby further reported, however, that a couple of weeks prior, Madison had been
standing on some stairs and had thrown herself backwards onto the ground. Gabby
said that she had seen Madison do that twice.
Thornhill, however, was skeptical that Madison’s injuries could have occurred in
the way Gabby had related. For one thing, Gabby had told Thornhill that Madison’s
self-harming behaviors and excessive masturbation had been longstanding problems,
but she also told Thornhill that Madison had not been seen by a counselor for these
behaviors, and Gabby did mention that neither she nor Tufts had ever raised them with
Madison’s pediatrician. For another thing, Thornhill concluded that Madison could not
22
have caused the injury to her genitals by using a doll to masturbate because her five-
year-old, forty-pound frame could not have mustered the level of force that was
necessary to cause the injury.
Thornhill then spoke to and examined Madison. When Thornhill asked Madison
how the injury to her genitals had occurred, Madison replied that “[t]he monster did it”
and that the monster lived in Poland. In addition, Madison did not mention to
Thornhill that she had fallen in the shower. Thornhill grew concerned that the injury
to Madison’s genitals had not been self-inflicted but instead had been caused by another
person who had recently had access to her. She also testified about the damage the
delay in treatment could have caused:
The fact that they waited as long as they did to seek medical care certainly
put her at risk for developing infection, because, again, this child was
stooling and urinating with those open wounds, and stool and urine both
carry bacteria that could have led to very severe infection, including sepsis,
which can cause death.
Thornhill also said that sepsis is a bloodstream infection that can “cause organs to fail
and can lead to death” and that is an “overwhelming . . . infection that attacks the entire
body [and] if it develops, patients can die as a result of that.”
Thornhill also spoke to Tufts. He told Thornhill that on the evening of August 9,
he had put soap on a loofah for Madison and then left her to shower on her own while
he went to check on Taryn. And he told Thornhill that he heard Madison
“whimpering” and that when he went into the bathroom to check on her, he found her
with the doll in her hands, and the doll had blood on its feet and head. Tufts said that
23
when he asked Madison what had happened, she said that she had put the doll inside
her. Tufts reported to Thornhill that Madison then proceeded to “flop in the tub like
a fish out of water.”
Tufts also offered an explanation for Madison’s bruises. He told Thornhill that
Madison had been engaging in self-harming behaviors and that she had a history of
sleepwalking and crashing into things. He also told her that Madison frequently
masturbated. Tufts explained that Madison’s behaviors had begun escalating around
the first week of August 2016 and that she had been throwing fits and throwing herself
on the ground. But Thornhill determined that the explanations she had been given for
Madison’s injuries were inconsistent with the injuries she had examined, and she
ultimately concluded that those injuries had resulted from abuse.
Dr. Jayme Coffman of the CARE team testified at trial that she had examined
Madison’s case and that the delay in treatment could have caused Madison’s serious
health issues. When asked specifically what the risks of delaying treatment were,
Coffman said, “There’s increased risk of infection because you’ve torn into intestine,
right into the rectum, where bowel movement and all manner of nasty bacteria are. So,
yeah, it increases that risk.”
Coffman also discussed the degree of pain that Madison would have felt when
the initial injury occurred. By Coffman’s account, the wound would have initially been
extremely painful, and Madison would have more than whimpered; rather, she would
have screamed loudly when it occurred. Coffman also said that it would have been
24
impossible for Madison to have caused the injury to herself: “There’s no way on God’s
green earth she could do it to herself. It would take too much force.” And Coffman
testified that the injury would have been bleeding profusely and that blood would have
been “running down [Madison’s] legs” the entire time Tufts would have been with her
in the bathroom.
Coffman also found Tufts’s claims that Madison had been injured with a doll
dubious. For example, Coffman said that the object that caused the wound would have
been larger than a doll. And from Coffman’s perspective, the picture of the doll with
blood on its legs was inconsistent with Madison having been injured by it; rather,
Coffman opined that she believed, given the demarcation of blood on the doll’s legs
but not anywhere else, that the doll appeared to have been dipped in something.
H. August 15, 2016
On August 15, 2016, while Madison was still recovering in the hospital, Phillip
Breedlove, a licensed professional counselor at Cook Children’s Medical Center, went
to see her in her hospital room. Breedlove visited with Madison alone. During the
visit, Breedlove asked Madison why she was in the hospital, and Madison replied that
she did not know. Breedlove then told Madison, “I see that you have a bruise on your
face.” Madison replied with something that was unintelligible, but Breedlove did
understand her to say the word “bathtub.” So he followed up by asking Madison, “You
got hurt in a bathtub?” Madison replied, “No, my daddy was a bad boy. He told me
25
not to . . . and pulled me down too hard.”4 Madison also told Breedlove, “I don’t like
Daddy, but I love him. He was a bad boy that time.”
I. Madison’s Outcries after Discharge from the Hospital
The concerns surrounding Madison’s injuries resulted in investigations from
both CPS and the Denton Police Department. As part of the investigation, Madison
underwent a forensic interview while still at the hospital. Following the forensic
interview, CPS performed an emergency removal and placed Madison with Xenia.
While the case was under investigation, Xenia reported information she had
received from Madison when she was driving Madison home from a follow-up doctor’s
appointment. During the drive, Madison told Xenia, “I didn’t hit my sister. Daddy was
mad at me, and he hurt my booty and my vagina.” After a pause, Madison then said,
“It was an accident. He said . . . he was sorry, and I hugged him.” Xenia also reported
that while she was shopping with Madison a few days later, Madison said, “Daddy stuck
Elsa in my booty, and Daddy is a mean man.”
Additionally, on August 26, 2016, Madison began seeing Rebeca Mata, a licensed
professional counselor. Throughout her counseling with Mata, Madison made several
statements referencing Tufts and the August 9, 2016 incident. During a September 5,
2016 counseling session, Madison told Mata that her daddy had hurt her. When Mata
4
Although Madison said something between the word “to” and the word “and,”
Breedlove could not understand what it was.
26
asked Madison how her daddy had hurt her, Madison replied that he had hurt her
“booty.” And when Mata asked Madison how he had hurt her booty, Madison
responded, “[W]ith Elsa.” Later, on September 12, 2016, Madison told Mata that
“[d]addy is a bad guy.”
During a September 21, 2016 counseling session, Madison said, “Daddy is mean.
He put Elsa in my booty, and I cried.” Madison told Mata on September 30, 2016, that
her daddy was mean, and when Mata asked her who her daddy was, Madison said
Tufts’s first and last name. On November 14, 2016, Madison told Mata that she missed
her mommy but not her daddy and that she did not like him. At a December 2, 2016
session, Madison said that she had a bad secret and that it was when her daddy had hurt
her. After making this statement, Madison pointed to her vagina and said that she felt
sad when it happened and that she cried. Madison told Mata at a December 29, 2016
session that she did not like her daddy and that she missed her mommy. And on
May 12, 2017, Madison said that she would not go live in the old house if her daddy
still lived there because she did not want to see him because he was bad.
In July 2017, Madison was placed back with Amy and Glenn, who ultimately
adopted her. On one occasion after Madison had finished taking a bath, she told Amy
that Tufts had hurt her “bum” in the shower and that her bum was bleeding everywhere.
Madison also told Amy that Tufts had hurt her with a doll in her “bum.” About a year
after Madison’s return to Amy and Glenn’s home, Madison was in the bathroom after
27
having taken a bath, and Glenn was helping her dry her hair. Madison pointed to the
shower and said, “Papa, this is where [Tufts] -- this is where this happened.”
J. Madison’s Testimony
Madison testified at trial. She was eight years old at the time. Prior to her
testimony, the trial court inquired of Madison whether she knew the difference between
the truth and a lie. Madison replied, “No.” But Madison did acknowledge that she
knew how to tell the truth, and she said multiple times that when she answered the
attorneys’ questions, she would tell the truth. The trial judge then asked, “If I told you
that I was a big purple elephant right now, would that be a truth or would that be a lie?”
Madison said, “Lie.”
Outside the jury’s presence, the prosecutor, who was wearing a black suit, asked
Madison whether her suit was blue, to which Madison said, “No.” The prosecutor also
asked Madison that if she said she was wearing a blue suit, whether that would be “a lie
or a truth?” Madison responded that it would be, “A lie.” Madison also assured the
prosecutor that she would truthfully answer any question the attorneys posed of her.
Defense counsel asked Madison, “[W]hat’s the difference between the truth and a lie?”
Madison said, “No.” Defense counsel also asked her, “What does it mean to tell the
truth?” or “[W]hat does it mean to lie?” Madison answered, “I don’t know” to both
questions.
The trial court allowed Madison to testify, and she recalled how she had
previously lived in Texas with Xenia after Xenia had picked her up from the hospital.
28
Madison said that she had been in the hospital because she had been hurt. Specifically,
Madison said that Tufts had hurt her “bum” with a doll when she was “out of the
shower.” Madison said that she remembered bleeding and then being taken to the
hospital. On cross-examination, Madison was unable to recall Gabby’s name, but she
did know Tufts’s and Taryn’s names and she knew that the family unit “was just the
four of [them].” Madison also could not remember the size of the house she lived in
while in Tufts and Gabby’s care, nor could she remember how many toys she may have
had.
Madison said that both Gabby and Taryn were home at the time of the doll
incident, but that they were not in the bathroom—it was just her and Tufts. She could
not remember whether she called Tufts by his first name or by “Daddy.” Madison also
thought that the home she lived in with Tufts “probably” only had one bathroom.
Madison could not recall many details of the house, and she could not recall getting
ready for bed the night of the doll incident. She did remember the drive to the hospital,
but she believed it was just her and Tufts in the car. She did not remember having
surgery, but she did remember Tufts watching cartoons with her while she was in the
hospital.
Madison said that Tufts had never asked her to touch his private area, but when
asked whether Tufts had touched her private area, Madison said, “I don’t know.” She
also denied having ever placed a Hot Wheels car in her anus.
29
K. Detective Bearden’s Investigation
Detective David Bearden with the City of Denton Police Department testified
at trial that he first interviewed Gabby and that Gabby explained to him how Madison
came into the couple’s care, how the couple came to adopt Madison, and how Madison
had experienced issues in Poland prior to coming to the United States. Bearden said
that when he asked Gabby to see the text messages between Tufts and herself, Gabby
said that they were no longer on her phone because she had “done a factory reset on
her cell phone.” Bearden found this suspicious. He was, however, able to gather
pictures from Gabby’s phone, including the picture of the doll with bloody legs that
Tufts had sent Gabby. Gabby told Bearden that when she first spoke with Tufts about
the doll incident, Madison was screaming in the background. Bearden learned from
Gabby that the couple did not take Madison to the hospital for “[t]wo days” and that
he found this concerning given the severity of the injury.
Gabby was able to explain some, but not all, of Madison’s bruises to Bearden.
And Gabby told Bearden that she had not seen Madison self-harm or masturbate.
Bearden also learned that Taryn was never disciplined but that Tufts frequently
disciplined Madison, at first by spanking, but then later by placing her in time-out,
making her stand in a corner, or taking away her favorite electronics.
Bearden was able to look at the journal that Amy gave the couple at the airport,
and he described how it mentioned that Madison had some behavioral issues, but it did
not state anywhere that Madison had engaged in self-harming, excessive masturbation,
30
or masturbation with any type of objects. Bearden said he had never seen an injury to
a child as bad as the one Madison sustained.
Bearden interviewed Tufts at the police station. According to Bearden, Tufts’s
explanation for Madison’s alleged behaviors was because she had been abused in
Poland. Bearden said that Tufts’s descriptions for how Madison had bruising and the
injury from the doll did not correspond with the injuries found on her body. Tufts told
Bearden that when the doll incident occurred, he had returned to the bathroom to check
on Madison, that she was standing and the doll was inside her, that he asked her what
she was doing, “and [that] she dropped it.” When confronted with the fact that he had
told his mother that he had removed the doll from Madison, Tufts told Bearden he did
not remember saying that to her.
Bearden searched Tufts and Gabby’s home multiple times. Bearden found it
suspicious that Tufts had washed the sheets that Madison had slept on the night of the
doll injury. He also found it suspicious that Tufts had already thrown away the doll and
Madison’s panties. Bearden did not find any Hot Wheels toys when he searched Tufts’s
house.
It also troubled Bearden that when he examined Tufts’s phone after searching
the home, Tufts’s phone logs did not go back more than a few days. According to
Bearden, phone logs typically “go back as far as months,” and the condition of Tufts’s
phone logs was reminiscent of Gabby’s phone reset. And despite Tufts’s having said
the incident happened in Madison’s bathroom and that he had cleaned blood off the
31
sink, Bearden was surprised to learn that there was no blood found in the bathroom or
shower even though the bathroom had clearly not been cleaned.
Bearden said that through his investigation he was unable to corroborate that
Madison had ever masturbated or self-harmed at school. Xenia reported to Bearden
that she never saw Madison masturbate or self-harm and that Madison had made
multiple statements that Tufts had hurt her. Madison had also made an outcry to a
therapist after the doll incident.
Bearden was also unable to corroborate that Madison had been the victim of
physical or sexual abuse in Poland prior to coming to the United States. And Bearden
said that Tufts had left him with the impression that Amy and Glenn relinquished
Madison because of excessive masturbation and self-harm, but Amy and Glenn denied
ever having said that was the reason.
According to Bearden, text messages5 between Gabby and Tufts made in the
weeks and days leading up to the doll injury revealed that the couple was having marital
problems and that Gabby was considering leaving Tufts. In these messages, Gabby
threatened to leave multiple times, and she called him a liar and said that she had
It is not clear from the record how Bearden was able to obtain the text messages
5
given that Gabby had reset her phone and Tufts’s phone logs were incomplete, but
Bearden testified that he obtained the messages during a second search of the home
from “iPads or the phones.”
32
considered breaking off their engagement prior to marriage because of his lying. The
texts also included a photo of the doll with blood on its legs.
Bearden agreed that during the forensic interview, Madison did not make an
outcry or implicate Tufts regarding the doll injury. Madison did say in the interview
that she had inserted her fingers and her foot in her vagina, but Bearden thought these
claims dubious. Bearden said he learned that the couple had been putting surgical tape
on Madison’s hands at night in an effort to stop her from masturbating. After ultimately
concluding that Tufts had caused Madison’s injuries, Bearden applied for and obtained
an arrest warrant for Tufts.
L. Tufts’s Testimony
At trial, Tufts testified that he has never hurt anyone in his entire life and that he
was being falsely accused of having harmed Madison. By Tufts’s account, he did not
hurt Madison on August 9, 2016, he would never do anything to hurt Madison, he loved
her, and he treated her like she was his own daughter.
Tufts said that when he and Gabby learned of the possibility of adopting
Madison in June 2015, they believed it would be several months before they could adopt
her, and they were surprised that they were picking her up within weeks of learning of
her availability. Tufts recalled that the couple was initially told that Madison “had no
issues” and that she was a “normal, healthy” girl.
Tufts said that at first he had no concerns about Madison’s behavior but that he
was concerned that Madison did not arrive with basic things like a toothbrush or extra
33
socks. He averred that Madison seemed small for her age. The same day as her arrival,
Tufts read the notebook that Amy had provided. Tufts said it was then that he began
to grow concerned because Amy had described in the notebook how Madison would
have hour-long fits and would masturbate.
According to Tufts, for the first several months after Madison arrived, she would
“have fits” by either stomping her feet or screaming and yelling for an hour or longer.
Madison would throw herself on the ground, urinate on herself, kick the family’s pets,
or hit walls. Tufts said that in February 2016, he called a certified counselor and reached
out to Diana about Madison’s behavior. Tufts stated that Madison’s behavior escalated
over the few months leading up to the doll incident. Specifically, she had become more
aggressive toward Taryn, sometimes hitting her. By July 2016, he had to put a gate at
the top of the home’s stairway to prevent Madison from throwing herself down the
stairs.
Regarding Madison’s habit of masturbating, Tufts said that he and Diana had
once witnessed Madison masturbate in the den while they were all watching television.
Initially, according to Tufts, Madison would stimulate herself on the outside of her
clothing but progressed into putting her fingers inside of her pants. Tufts said that
prior to August 9, 2016, he had never seen Madison masturbate using any type of object,
but that Gabby had seen Madison do so and that Madison had told Gabby that she had
done so. He averred that he and Gabby had attempted to quell Madison’s increasing
34
masturbation by either making her wear mittens at night or by taping her fingers
together with surgical tape. Neither approach worked.
Tufts said that Madison often self-harmed and that it had escalated over time.
He also said that Madison frequently experienced bruising from her behavior on her
arms, head, and face and that, especially if someone was watching, she would forcefully
press down on the bruises, making them worse. Tufts referred to this behavior as
“attention-gett[ing].” By July 2016, Tufts said that Madison’s behavior had progressed
to the point that she would fall back onto the ground and start kicking and screaming
loudly while hitting her arms and legs “up and down on the floor.” He also insisted
that Gabby had witnessed Madison self-harm. Further, Tufts said that when he was at
work, and Gabby was watching the two girls, he would receive texts from Gabby
“telling” him that he needed to come and get “[his] child.”
By Tufts’s account, Gabby was frustrated with Madison as she prepared to go to
work on August 9, 2016, but that otherwise, when he got home from work and Gabby
had left for her job, the evening was fairly routine. Later that evening, Tufts had
Madison and Taryn go to separate bathrooms to shower. After getting Madison started,
he said he went to check on Taryn. As he assisted Taryn, Tufts said that he grew
concerned that he had not heard Madison turn on the television, which seemed odd to
Tufts because Madison was capable of getting out of the shower herself, and normally
by that time she would already have dressed herself and turned on the television. As
he approached the bathroom where Madison was located, Tufts heard “a whimpering
35
sound or something.” Tufts described for the jury what he saw when he walked into
the bathroom:
I saw the shower curtain was halfway open, which it never was. I saw
[Madison] with her left leg on the ground, her right leg on the -- like on
the tub, and I just saw the doll. I don’t know if it was head or feet first. I
saw a doll between her legs, and I was like, [Madison], what -- I mean, I
said, [Madison], what the hell are you doing? Because I was freaked out.
I was like, oh, my God. I didn’t know what was going on.
As far as the specific location of the doll, Tufts said that he did not know exactly where
it was other than it was “in between her legs,” and Madison was holding the doll with
her right hand. Tufts said that Madison’s response to him questioning her about what
she was doing was to drop the doll onto the floor outside the bathtub. Tufts said that
he grabbed the doll to prevent Madison from getting it again, he placed it on the counter
near the sink, but he did not notice that it had blood on it at the time.
Tufts stated that Madison responded by throwing “a fit because she lost her toy”
and then, the “next thing [he] knew” Madison turned around backward, with her head
“falling toward the faucet and the drain plug . . . in the bathtub.” From there, Madison
began to “zone out,” so Tufts grabbed her by her shoulders in an effort to stop her
movement. After having her sit down in the tub, Tufts said that is when he first saw
“blood droplets.” By Tufts’s account, he then put a towel on Madison and told her to
put her “hand [t]here and keep pressure on it and don’t move.” Tufts alleged that
Madison told him that she apologized for having hurt herself and that she then began
36
to cry. Tufts said that when she “calmed down again, she wasn’t bleeding anymore”
that he could see.
According to Tufts, he then ran to check on Taryn, dried her off quickly, put her
pajamas on her, laid her on the master bed, and turned on the television, but when he
returned to Madison, she “had been messing with it,” and he again saw that there
“wasn’t that much” blood. He then called Gabby, but she did not answer, so he called
Diana. Diana asked Tufts to send her a picture of the doll, so he went to the bathroom
to photograph it. Tufts said that it was at that time that he noticed blood on the doll.
Tufts took a picture of the doll’s legs and texted it to Diana, who then called Tufts, told
him to call Gabby and to have Gabby come home and take Madison to the doctor. He
then texted Gabby the picture of the doll, and Gabby called him.
Shortly after, Tufts called Diana and told her that he did not think Madison was
bleeding anymore and that Gabby was coming home to check on her. Tufts said that
while on the phone with Gabby, he expressed that Madison did not appear to be hurt.
Tufts described to the jury that by that time, Madison was acting normal, brushing her
teeth, and combing her hair. After that, she began watching television and was
“jumping and bouncing around.” At no time did she appear to Tufts to be in pain.
Tufts said that he then waited for Gabby to come home, expecting that she would check
on Madison. Tufts testified that he considered taking Madison to the emergency room,
but Gabby checked on Madison and told Tufts that she was fine and sleeping.
37
The next day, Tufts went to work as Gabby watched the girls. Tufts said that
while he was at work, Diana called him and inquired whether Madison needed to go
the hospital, and he told her that Madison was fine. Tufts also communicated with
Gabby and learned that she had seen “a little bit of blood in” Madison’s panties, so she
put a panty liner in her panties and told Madison that if she bled any more, they would
take her to the doctor. Gabby also told Tufts that Madison “wasn’t feeling too good.”
Tufts said that when he left work that afternoon, he contacted Cook Children’s
Pediatrics. According to Tufts, Madison’s doctor was on maternity leave, so the office
told him they would call him back to schedule an appointment with another doctor.
Because he had not received a return call by 4:30 p.m., Tufts said he called the
pediatricians’ office again. He was able to schedule an appointment for Madison at
1:30 p.m. on August 11, 2016. Once Tufts got home on the evening of August 10, he
said he observed Madison and that other than her not moving around as much as she
normally would, she said she was okay and did not appear to be in any pain, and he did
not witness any bleeding.
After Gabby took Madison to the scheduled appointment, she called Tufts and
told him that she would need to take Madison to Cook Children’s emergency room to
“get stiches,” but that she was going to pick him and Taryn up on the way. Tufts said
that he ended up speaking with several nurses, doctors, and hospital personnel that day.
Tufts averred that he provided these people with the same information he testified
about and that at least one of these conversations occurred in Madison’s presence.
38
According to Tufts, the day after surgery, August 12, he spent time in the hospital
with the other three family members, and Madison was acting fine, asking Tufts to hand
her things like crayons and asking that he give her a hug and a kiss. On August 13,
Tufts went to the hospital to learn how to change Madison’s colostomy bag. Tufts said
that in front of a nurse, Madison said that he was her “daddy.”
Later that day, Tufts spoke with Thornhill alone. Tufts said that he provided
Thornhill with the same information he had other nurses and doctors, which is the
information he said he had testified about. On August 15, Tufts went to the hospital
earlier than normal because CPS and the police had been questioning Gabby. Tufts
then spoke with Bearden at the hospital and set up a time to be interviewed at the police
station. Shortly after speaking with Bearden at the hospital, Bearden and others
informed Tufts and Gabby that they would need to leave and that CPS would be taking
custody of Madison. After Gabby and Tufts left the hospital, Tufts called Diana, who
was watching Taryn. Diana told Tufts that she had been asked to come and speak with
CPS and to bring Taryn with her. After speaking with CPS and being informed that
Taryn was also being removed from Tufts and Gabby’s care, Diana called Tufts to
inform them that Taryn would be placed with Diana.
Tufts said that he went to be interviewed by Bearden at the police station on
August 16. According to Tufts, he went voluntarily and did not have an attorney
accompany him because he believed he had done nothing wrong and had nothing to
hide. Tufts said that he was completely honest with Bearden and that at the end of the
39
interview, he consented to Bearden’s searching his home. Bearden and another officer
searched the home, and then later via a search warrant, searched the home again.
Tufts said that the reason he and Gabby had never sought counseling for
Madison prior to July 2016 was because they had been led to believe that Madison’s
behavior of hour-long screaming and frequent masturbation was “typical European
foster children behavior.” He also averred that Curtis was mistaken that the first time
he spoke with her was August 9 and that Greer was lying about not having sought
phone updates about Madison from Tufts. And he acknowledged that after his
appointment on July 28 with Greer, he had not attempted to call a counselor for
Madison until calling Curtis two days prior to the doll incident, even though Curtis had
testified that he had not contacted her until the day of the incident.
Tufts also testified that he learned from Gabby that Madison had stated that she
had been harmed in Poland and that she had slept in a crate there. According to Tufts,
Madison “was always referring to the monster in Poland.”
M. Indictment, Conviction, and Sentencing
A grand jury indicted Tufts on three counts of injury to a child, all committed
“on or about the 9th day of August, 2016.” See Tex. Penal Code Ann. § 22.04(a).
Count I alleged that Tufts had intentionally or knowingly caused serious bodily injury
to Madison “by penetrating the sexual organ and/or anus of [Madison] with a doll or
an unknown object.” Count II alleged that Tufts had intentionally or knowingly caused
bodily injury to Madison “by grabbing [Madison] with [his] hand, by squeezing
40
[Madison] with [his] hand, by striking [Madison] with an unknown object[,] or by
causing [Madison] to strike an unknown object.” And Count III alleged that Tufts had
intentionally or knowingly by omission, caused serious bodily injury to Madison “by
failing to seek medical attention in a timely manner, and [Tufts] had a legal duty to act,
namely, as a parent or legal guardian.”
A jury found Tufts guilty on all three counts. Following the punishment phase,
the jury assessed Tufts’s punishment at twenty years’ confinement on Count I, five
years’ confinement on Count II, and twenty-eight years’ confinement on Count III.
The trial court sentenced Tufts accordingly. It further ordered that the sentences
imposed for Count I and Count III run consecutively and that the sentence imposed
for Count II run concurrently with the sentence imposed for Count I. This appeal
followed.
III. DISCUSSION
A. Sufficiency of the Evidence
In his first two issues, Tufts argues that there is insufficient evidence to support
his convictions on Count III and Count II, respectively. We disagree.
1. Standard of Review
When reviewing whether sufficient evidence supports a conviction, we look at
all of the evidence in the light most favorable to the jury’s verdict to determine whether
any rational factfinder could have found the crime’s essential elements beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787 (1979);
41
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full
play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Jenkins v. State, 493 S.W.3d 583, 599 (Tex.
Crim. App. 2016).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an
evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and
credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622.
Instead, we determine whether the necessary inferences are reasonable based on the
evidence’s cumulative force when viewed in the light most favorable to the verdict.
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State, 514 S.W.3d
227, 232 (Tex. Crim. App. 2017) (“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.”). We must presume that the factfinder resolved any conflicting
inferences in favor of the verdict, and we must defer to that resolution. Murray,
457 S.W.3d at 448–49.
To determine whether the State has met its Jackson burden to prove a defendant’s
guilt beyond a reasonable doubt, we compare the crime’s elements as defined by the
hypothetically correct jury charge to the evidence adduced at trial. See Jenkins,
493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The
42
essential elements of the crime are determined by state law.”). Such a 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 restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried. Jenkins,
493 S.W.3d at 599. The “law as authorized by the indictment” means the statutory
elements of the charged offense as modified by the factual details and legal theories
contained in the charging instrument. See id.; see also Rabb v. State, 434 S.W.3d 613, 616
(Tex. Crim. App. 2014) (“When the State pleads a specific element of a penal offense
that has statutory alternatives for that element, the sufficiency of the evidence will be
measured by the element that was actually pleaded, and not any alternative statutory
elements.”).
The standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins,
493 S.W.3d at 599. We must scrutinize circumstantial evidence of intent as we do other
elements of an offense. Laster v. State, 275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009).
But when a record supports conflicting inferences, we “must presume—even if it does
not affirmatively appear in the record—that the trier of fact resolved any such conflict
in favor of the prosecution, and must defer to that resolution.” Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
43
2. Applicable law
A person commits the offense of injury to a child if he “intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly
by omission, causes to a child” serious bodily injury or bodily injury. See Tex. Penal
Code Ann. § 22.04(a)(1), (3). For purposes of an injury-to-a-child by omission offense,
an omission that causes a child to suffer serious bodily injury is conduct constituting an
offense if the actor has a legal or statutory duty to act. Id. § 22.04(b)(1); see Estrella v.
State, 546 S.W.3d 789, 795 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d); Williams
v. State, 294 S.W.3d 674, 684 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (op. on
reh’g).
Injury to a child is a result-oriented offense requiring a mental state that relates
not to the specific conduct but to the result of that conduct. See Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). It is therefore not enough for the State
to prove that the defendant engaged in the alleged conduct with the requisite criminal
intent; rather, it must prove that the defendant caused the result with the requisite
criminal intent. Estrella, 546 S.W.3d at 795.
A person acts intentionally with respect to a result of his conduct when it is his
conscious objective or desire to cause the result. Tex. Pen. Code Ann. § 6.03(a). A
person acts knowingly with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result. Id. § 6.03(b). The particular results at
issue here are “serious bodily injury” (Count III) and “bodily injury” (Count II).
44
“Serious bodily injury” means “bodily injury that creates a substantial risk of death or
that causes death, serious permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” Id. § 1.07(a)(46). “Bodily injury”
means “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8).
3. Count III: Injury to a Child by Omission
In his first issue, Tufts challenges the sufficiency of the evidence to support his
conviction for Count III, the count alleging that he committed injury to a child by
omission. See id. § 22.04(a)(1). The omission alleged in the indictment was Tufts’s
failure to seek medical attention for Madison in a timely manner. Tufts’s challenge falls
into two categories: (1) that no injuries occurred to Madison beyond what would have
occurred with proper treatment to the injuries she sustained from the doll, and (2) that
the State failed to prove that Tufts had the requisite knowledge to prove violation of
his parental duty of care or that his omission was intentional or knowing.
a. Injury Beyond the Initial Doll Incident
Tufts acknowledges that the jury found him guilty on Count I and thus must
have believed that he caused Madison serious bodily injury by inserting a doll or an
unknown object into her sexual organ and/or anus. But he argues there is no evidence
that any subsequent delay in obtaining medical treatment for that injury itself caused
Madison to sustain a serious bodily injury. He does not dispute that as Madison’s father,
he had a duty to obtain timely medical care for that injury. And he concedes that there
is evidence that the delay between when Madison sustained that injury and when she
45
received medical care for it increased Madison’s risk of developing certain health
complications. Pointing to our sister court’s decision in Estrella, Tufts contends that it
was not sufficient for the State to prove merely that the delay put Madison at risk of
sustaining additional serious bodily injury; instead, he maintains the State had to prove
that the delay actually caused Madison to sustain such an injury. 546 S.W.3d at 798–
802. Tufts argues the State presented no such evidence.
But viewing the evidence in a light most favorable to the jury’s verdict, the record
demonstrates that the rule Tufts points to from Estrella is satisfied and that the delay in
seeking treatment in this case (1) created a substantial risk of death to Madison and
(2) caused a protracted loss or impairment of the function of a bodily member or organ.
See id.; Tex. Penal Code Ann. § 1.07(a)(46). Either is sufficient to support the jury’s
finding that the delay caused a serious bodily injury. See Tex. Penal Code Ann.
§ 1.07(a)(46).
As to a substantial risk of death, multiple witnesses testified that the delay in
seeking treatment could have caused Madison to catch a deadly infection. Specifically,
when asked “[w]hat loss or impairment could have resulted” from the delay in
treatment, Thornhill averred that the “fact that [Tufts and Gabby] waited as long as
they did to seek medical care certainly put [Madison] at risk for developing [a] very
severe infection, including sepsis, which can cause death.” Indeed, Thornhill testified
three times that Madison could have developed sepsis and died due to the delay in her
receiving treatment. Similarly, when asked by the prosecutor whether the delay in
46
Madison receiving treatment could have caused a “life-threatening infection,” Teoh
testified, “It’s possible.” And when Coffman was asked specifically what the risks of
delaying treatment were, she said, “There’s increased risk of infection because you’ve
torn into intestine, right into the rectum, where bowel movement and all manner of
nasty bacteria are. So, yeah, it increases that risk.”
Citing Ex parte Henderson, Tufts argues that this testimony is insufficient to prove
a substantial injury because the testimony only described “a risk” that Madison could
or may develop a life-threatening infection. See 384 S.W.3d 833, 833–34 (Tex. Crim.
App. 2012) (referring to need to be able to determine cause of child’s injury “with a
reasonable degree of medical certainty”). But the use of hypothetical scenarios or
questions to establish that injuries could cause a substantial risk of death to a person
has been held sufficient to support a conviction. See Boney v. State, 572 S.W.2d 529, 532
(Tex. Crim. App. 1978) (holding that evidence that victim sustained laceration, which
doctor testified could cause shock that could result in death and could cause substantial
risk of death, was sufficient to support finding of serious bodily injury within language
of aggravated-assault statute); Johnson v. State, No. 07-02-0440-CR, 2003 WL 22332274,
at *1 (Tex. App.—Amarillo Oct. 13, 2003, no pet.) (not designated for publication)
(“That the doctor said, at times, the injuries ‘could’ have been life threatening is of no
consequence. Use of the word ‘could’ does not render his testimony hypothetical or
speculative.”). We hold that a rational factfinder could have found beyond a reasonable
47
doubt that Tufts’s delay in seeking medical care for Madison placed her at a substantial
risk of death. See Queeman, 520 S.W.3d at 622.
As to a protracted loss or impairment of the function of one of Madison’s bodily
members or organs, after Iglesias had explained that he had to perform the colostomy
because Madison’s injury was not “a new injury,” the prosecution asked Iglesias
specifically what he meant, and he said, “If this was a brand-new and fresh injury,
depending on what it looked like, then odds are we would have probably been able just
to -- to close it and avoid the colostomy.” Iglesias also told the jury that the delay
“confirmed the fact that [he] had to” perform the colostomy. Tufts again argues that
this testimony is too speculative to support the jury’s finding, but as mentioned above,
the use of hypothetical scenarios or questions to establish that injuries could cause a
substantial risk of death to a person is sufficient to support a conviction. Boney,
572 S.W.2d at 532. We hold that a rational factfinder could have found beyond a
reasonable doubt that Tufts’s delay in seeking medical care for Madison caused her to
suffer protracted loss or impairment of the function of her bodily members or organs.
See Queeman, 520 S.W.3d at 622.
b. Requisite Knowledge
Tufts argues that the State failed to prove that he “intentionally or knowingly”
caused serious injury to Madison by any delay in seeking medical treatment. The gist
of Tufts’s argument is that there is no direct evidence that he caused the injury to
Madison that required her need for medical care, that he was unaware of the severity of
48
her injury, and that Madison could not recall any details directly implicating him in the
injury; thus, he could not have intentionally or knowingly delayed in seeking her
treatment. Although at times Tufts’s briefing seems to focus on the mens rea element
of Count I (the doll injury), given that he is appealing his conviction for Count III in
this issue, we will analyze the culpable mental state for Count III (the injury from the
delay in seeking treatment).
Contrary to Tufts’s position on this issue, mental state is rarely proved through
direct evidence and almost always depends on circumstantial evidence. Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002); Smith v. State, 56 S.W.3d 739, 744–45 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). And in this case, viewing the evidence
in a light most favorable to the jury’s verdict, the record demonstrates that Madison
was severely injured and in need of medical care. Multiple medical professionals
testified that Madison’s injuries would have resulted in a large amount of blood. The
record shows that numerous people, including Greer, Diana, and Torrie, all expressed
concern that Madison was bleeding, and all instructed Tufts to take Madison for
immediate medical care. And Madison made the specific outcry that Tufts had hurt her
with the doll and that there was a lot of blood. A reasonable inference from this
evidence is that Tufts was aware that Madison had bled a lot, thus indicating she had a
severe injury requiring medical attention. See Payton v. State, 106 S.W.3d 326, 329 (Tex.
App.—Fort Worth 2003, pet. ref’d) (“[T]he jury could reasonably infer that T.P. was
bleeding that morning, and appellant would have noticed it.”).
49
Tufts argues that he was unaware that Madison was as injured as she was and
that her bleeding had stopped and that is why he did not take her for medical care right
away. He also testified that he never saw much blood. But a jury was free to disbelieve
his testimony that he never saw much blood (especially given that the jury saw
photographs of the bloody doll). And the jury was free to believe the testimony of the
witnesses who said that they told Tufts to take Madison for medical care and that the
type of injury Madison had sustained would have produced a lot of blood. See Tex.
Code Crim. Proc. Ann. art. 38.04 (“The jury, in all cases, is the exclusive judge of the
facts proved, and of the weight to be given to the testimony . . . .”). In fact, Coffman
said that Madison would have been bleeding so profusely that blood would have been
“running down [her] legs,” and Madison would have been bleeding the entire time Tufts
was with her in the bathroom. Iglesias also testified that the injury would have produced
a lot of blood, and Gabby told Torrie that the day after the injury occurred (August 10),
Madison was bleeding and oozing a lot.
Moreover, it is a reasonable inference from testimony describing Tufts’s frantic
tenor during phone calls in the immediate aftermath of the injury that Tufts recognized
the severity of the injury. Indeed, Gabby, Curtis, and Diana all testified that Tufts
sounded panicked when he first called to report to them that Madison was injured.
Tufts himself testified that he was very concerned for Madison and that is why he called
Gabby and Diana, albeit four hours apart.
50
Additionally, only Tufts or Madison could have caused the injury while she was
in the bathroom when she was injured, and numerous medical witnesses testified that
Madison, given her young age and slight frame, could not have inflicted the injury.
Thus, this evidence also supports the jury’s verdict. See Bearnth v. State, 361 S.W.3d 135,
140 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“The record also indicates that
Bearnth was the only adult present at the time of the injury; there is no evidence that
anyone else was in the bathroom with K.P.”). Thus, it is a reasonable inference that
Tufts, who could have been the only one to cause the injury to Madison, was fully aware
of the nature and severity of the injury.
The jury also had before it evidence that Tufts appeared to be attempting to build
a defense in the wake of the injury by calling Greer and Torrie while frequently being
more concerned with a narrative that Madison had been abused in Poland. And Tufts
gave Greer the impression that he was less concerned for Madison’s well-being and
more concerned about how he would explain the injury to authorities. Also, multiple
witnesses testified about Tufts’s changing and implausible explanations for how
Madison was injured and his changing stories about the amount of blood he had initially
seen. Evidence of this behavior supports the jury’s finding of guilt. See Lozano v. State,
359 S.W.3d 790, 814 (Tex. App.—Fort Worth 2012, pet. ref’d) (“[H]is inconsistent
statements and implausible explanations indicate guilt, and that additional evidence
supports the jury’s finding of guilt.”).
51
We conclude that a rational factfinder could have found beyond a reasonable
doubt that Tufts intentionally or knowingly failed to seek medical attention for Madison
and that this omission caused serious bodily injury to her. We overrule Tufts’s first
issue.
4. Count II: Injury to a Child by Contact
In his second issue, Tufts challenges the sufficiency of the evidence to support
his conviction on Count II. That count alleged that “on or about August 9, 2016,”
Tufts intentionally or knowingly caused bodily injury to Madison “by grabbing [her]
with [his] hand, by squeezing [her] with [his] hand, by striking [her] with an unknown
object or by causing [her] to strike an unknown object.” See Tex. Penal Code Ann.
§ 22.01(a)(3). The bodily injuries upon which the State relies to support Tufts’s
conviction on Count II are the numerous bruises found in various stages of healing that
Madison had all over her body. Tufts contends the evidence is insufficient to support
a finding that he knowingly or intentionally caused those bruises by any act alleged in
the indictment.
There was evidence that, by the time Madison made it to the hospital on
August 11, 2016, she had numerous bruises all over her body in various stages of
healing. Teoh, Thornhill, Coffman, and Gabby all testified that Madison had these
bruises. Coffman testified that Madison had a bruise to the bridge of her nose and
facial bruising near her temple and cheek area. Coffman said that the injury would not
have occurred by falling or flopping around in a bathtub. Thornhill said that this type
52
of injury was consistent with being struck by someone. Madison also had a bruise to
her ear, another bruise that Thornhill averred was consistent with someone having
struck Madison and which Coffman described as an impact injury.
Much like in the analysis above, Tufts also gave implausible and varying stories
about the cause of the bruises and even appeared to have been attempting to create a
defense for why Madison had the bruises. For example, Tufts told Greer about the
bruises on August 10, explaining how the night before, Madison had called out that she
had hit her eye (an area that contained a bruise that multiple witnesses said appeared to
be the product of abuse) because she had run into her nightstand. Tufts also maintained
that Madison had fallen and flailed around in the bathtub. But again, multiple witnesses
testified that Madison’s falling in the tub could not have caused the bruising.
Additionally, there is some evidence in this record, namely Bearden’s testimony, that
incriminating evidence was concealed. Indeed, both Tufts’s and Gabby’s phones had
either been reset or call logs had been deleted. These implausible stories, concealment
of evidence, and inconsistent explanations for the bruises are evidence supporting the
jury’s verdict of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)
(“Attempts to conceal incriminating evidence, inconsistent statements, and implausible
explanations to the police are probative of wrongful conduct and are also circumstances
of guilt.”).
We hold that the jury could have found beyond a reasonable doubt that Tufts
intentionally or knowingly caused bodily injury to Madison by grabbing her with his
53
hand, by squeezing her with his hand, by striking her with an unknown object, or by
causing her to strike an unknown object. See Queeman, 520 S.W.3d at 622. We overrule
Tufts’s second issue.
B. Madison’s Competency
In his third issue, Tufts argues that the trial court erred by finding Madison
competent to testify at trial. Specifically, Tufts argues that the trial court failed to inquire
whether Madison understood “that some penalty is attached when the truth is not told.”
1. Law of Competency and Standard of Review
Generally, every person is presumed competent to testify. Tex. R. Evid. 601(a);
Hogan v. State, 440 S.W.3d 211, 213 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
However, a person, such as a child, is not competent to testify if, upon examination by
the trial court, the court finds that the person “lacks sufficient intellect to testify
concerning the matters in issue.” Tex. R. Evid. 601(a)(2); Torres v. State, 424 S.W.3d
245, 254 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Hogan, 440 S.W.3d at 213.
Moreover, “[b]efore testifying, a witness must give an oath or affirmation to testify
truthfully. It must be in a form designed to impress that duty on the witness’s
conscience.” Tex. R. Evid. 603.
We review a trial court’s determination of whether a child witness is competent
to testify for an abuse of discretion. Davis v. State, 268 S.W.3d 683, 696 (Tex. App.—
Fort Worth 2008, pet. ref’d). We review the child’s responses to qualification questions
as well as the child’s entire testimony. Id. When a defendant challenges the competency
54
of a child witness, the trial court must be assured that the child has (1) the ability to
intelligently observe the events in question at the time of the occurrence, (2) the capacity
to recollect events, and (3) the capacity to narrate the events. Id. at 699.
2. Madison’s Testimony
Prior to her testimony, the trial court asked Madison whether she knew the
difference between the truth and a lie. Although Madison initially replied, “No,” she
did acknowledge that she knew how to tell the truth, and she said multiple times that
when she answered the attorneys’ questions she would tell the truth. She was also able
to answer specific questions from both the trial court and the prosecutor where she
identified when both had said something untruthful. Specifically, the trial judge asked
Madison whether it was the truth or a lie if he said he was “a big purple elephant right
now?” Madison said that the statement was a lie. Outside the jury’s presence, the
prosecutor asked Madison whether her suit—which was black—was blue, to which
Madison said, “No.” The prosecutor then asked Madison that if she said she was
wearing a blue suit, whether that would be “a lie or a truth?” Madison responded, “A
lie.” Madison also assured the prosecutor that she would truthfully answer any question
the attorneys posed of her. Thus, even though Madison could not define “the truth”
or “a lie,” she demonstrated that she otherwise comprehended the need to tell the truth.
See Upton v. State, 894 S.W.2d 426, 429 (Tex. App.—Amarillo 1995, pet. ref’d) (“More
importantly, whether the minor can define such terms as ‘truth’ or ‘lie’ is unimportant
if he otherwise comprehends the need to be truthful.”).
55
Madison also demonstrated that she had the ability to observe the events in
question at the time of the doll incident. She testified that she had previously lived in
Texas and had been in the hospital because she had been hurt by a doll in Tufts’s home.
And she was able to recall and narrate the doll incident by averring that once she got
out of the shower, Tufts hurt her “bum” with a doll. Thus, the trial court had evidence
that Madison satisfied the three factors above. See Davis, 268 S.W.3d at 699.
Tufts argues that because Madison was unable to recall certain details about the
home she lived in when the doll incident occurred and because she did not initially
make an outcry against Tufts, she inherently was incompetent to testify at trial. But as
Thornhill testified, it is not uncommon for children to not tell who abused them right
away for various reasons, including fear or having been threatened. See Kamanga v. State,
502 S.W.3d 871, 875 (Tex. App.—Fort Worth 2016, pet. ref’d) (“The forensic
interviewer testified that a ‘rolling outcry,’ where children say less initially than they
eventually say, is common for abused children.”). Inconsistencies in a child’s testimony
do not automatically render her incompetent to testify; instead, they may simply affect
her credibility. Torres, 424 S.W.3d at 255.
While conceding that he is basically relying on former rules and cases based on
those former rules, Tufts nonetheless also argues that what was fatally missing before
the trial court in this case was any expression by Madison that she understood her moral
obligation to tell the truth or in some way there was a penalty for not telling the truth.
This court has previously rejected the argument that a trial court is required to question
56
“a child on the child’s understanding of the punishment that will be inflicted should . . .
she lie.” Davis, 268 S.W.3d at 699. Under the current Texas Rules of Evidence, there
is a presumption that a person is competent to testify, and the burden to show
incompetence is on the party seeking to exclude the witness. Gilley v. State, 418 S.W.3d
114, 120–21 (Tex. Crim. App. 2014). Tufts did not carry that burden at trial. And Tufts
also improperly relies on the Gilley court’s acknowledgment that the language of former
Article 38.06 of the Texas Code of Criminal Procedure was not carried over into the
current Rules of Evidence, but that a trial court “may” still inquire that a child
understand the obligation of the oath. As can easily be understood from reading Gilley,
such questions by the trial court are purely discretionary. Id. We overrule Tufts’s third
issue.
C. Admissibility of Madison’s Outcry Statements
In part of his fourth issue, Tufts argues that the trial court erred by allowing
Xenia to testify about what Madison had said that Tufts had done to her. Specifically,
Tufts argues that these statements6 constituted impermissible hearsay and bolstering.
The State argues that the trial court properly admitted the testimony as a prior
consistent statement and that Tufts has failed to preserve a bolstering argument for our
review. We agree with the State.
Although Xenia testified to a number of outcry-like statements that Madison
6
had made to her, the only statements that Tufts challenges in his brief are when Madison
told Xenia that “Daddy stuck Elsa in my booty, and Daddy is a mean man” and when
Madison also said that her “bum got hurt with a doll . . . by [Tufts].”
57
1. Standard of Review
We review the trial court’s admission of evidence for an abuse of discretion.
Allen v. State, 202 S.W.3d 364, 367 (Tex. App.—Fort Worth 2006, pet. ref’d) (op. on
reh’g); see Montgomery v. State, 810 S.W.2d 372, 390–91 (Tex. Crim. App. 1991) (op. on
reh’g). Under this standard, the trial court’s ruling will be upheld as long as it falls within
the “zone of reasonable disagreement” and is correct under any theory of law applicable
to the case. Alami v. State, 333 S.W.3d 881, 889 (Tex. App.—Fort Worth 2011, no pet.);
Karnes v. State, 127 S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, pet. ref’d).
2. Prior Consistent Statement
Before a prior consistent statement becomes admissible, five requirements must
first be met under Texas Rule of Evidence 801(e)(1)(B): (1) the declarant must testify
at trial and be subject to cross-examination; (2) there must be an express or implied
charge of recent fabrication or improper influence or motive of the declarant’s
testimony by the opponent; (3) the proponent must offer a prior statement that is
consistent with the declarant’s challenged in-court testimony; (4) the prior consistent
statement must be offered to rebut an express or implied charge of recent fabrication;
and (5) the prior consistent statement must be made prior to the time that the supposed
motive to falsify arose. Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007);
Bosquez v. State, 446 S.W.3d 581, 585 (Tex. App.—Fort Worth 2014, pet. ref’d). “The
rule sets forth a minimal foundation requirement of an implied or express charge of
fabrication or improper motive.” Hammons, 239 S.W.3d at 804. This minimal
58
foundation requires only a suggestion that a witness consciously altered her testimony.
Id.
The trial court must look at the totality of the cross-examination in determining
whether recent fabrication was implied. Id. at 808. Merely questioning a witness’s
credibility does not equate to a charge of recent fabrication. Id.; Bosquez, 446 S.W.3d at
586. Nevertheless, depending on the tone and tenor of the questioning, the cross-
examiner’s demeanor, facial expressions, pregnant pauses, and other nonverbal cues,
the benign questioning of credibility could subtly imply recent fabrication. Hammons,
239 S.W.3d at 808. An implication of fabrication can be solidified when looking at the
trial as a whole—including voir dire, opening statements, and closing arguments. Id.;
Bosquez, 446 S.W.3d at 585. A reviewing court should look at the purpose of the
impeaching party, all the circumstances, and the trial court’s interpretation of the
implication. Hammons, 239 S.W.3d at 808.
At trial, the State pointed to this exchange between defense counsel and Madison
as evidence the defense had implied that Madison had fabricated her testimony:
Q: Okay. Do you remember [the prosecutors] coming up to Utah to
see you in – last summer?
A: I’m confused.
Q: Okay. Do you remember Lauri and Rick? You said you know who
Rick is, right?
A: Yeah.
Q: How many times have you met them before?
59
A: I’ve only met Lauri once, and then I only met Rick once.
Q: Okay. And was that here in Texas, or was that up in Utah?
A: Up in Utah.
Q: Okay. And do you remember talking to other people about what
happened in the shower?
A: Yes.
Q: Okay. Did you talk to a lot of people about what happened in the
shower?
A: Not a lot.
Q: Okay. More than five times, do you think you talked about what
happened in the shower?
A: It was more than five times.
In this case, Madison testified at trial and was subjected to cross-examination.
And when looking at the trial as a whole, there was an express or implied charge of
recent fabrication or improper influence. Indeed, during opening arguments, defense
counsel argued to the jury that Madison had not previously made any allegations against
Tufts until after she moved in with Xenia and that is “when these allegations changed,
when these ideas were put into [Madison’s] head.” Given that foundation, the
implication that Madison had not discussed what happened in the shower with very
many people other than the prosecutors was a suggestion that Madison consciously
altered her testimony and fabricated it because of the prosecutors’ influence. Thus, the
State offered Xenia’s testimony to show that Madison had in fact made a consistent
60
statement previously that Tufts is who harmed her in the shower with the doll, as she
had done in her testimony.
Tufts argues that Madison’s statement was not shown to be made before she
would have had a motive to fabricate her testimony. But the statements made to Xenia
were made prior to Madison moving to Utah and living with Amy and Glenn. Thus,
her statements made to Xenia were made prior to the prosecutors visiting Madison in
Utah when they would have allegedly influenced Madison to alter her testimony in
preparation for trial. See Hammons, 239 S.W.3d at 808. We overrule this portion of
Tufts’s fourth issue.
3. Bolstering Argument Not Preserved
In the remainder of Tufts’s fourth issue, he argues that the trial court improperly
allowed the State to bolster other evidence through Xenia’s testimony. To preserve a
complaint for our review, a party must have presented to the trial court a timely request,
objection, or motion stating the specific grounds, if not apparent from the context, for
the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. State, 505 S.W.3d 916, 924 (Tex.
Crim. App. 2016). Further, the party must obtain an express or implicit adverse trial-
court ruling or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2);
Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013); Martinez v. State,
17 S.W.3d 677, 686 (Tex. Crim. App. 2000).
Here, Tufts did not object to Xenia’s testimony about what Madison told her
based on a bolstering objection. Thus, he has failed to preserve this portion of his
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fourth issue for our review. See Tex. R. App. P. 33.1(a)(1). We overrule Tufts’s fourth
issue entirely.
D. Double Jeopardy
In his fifth issue, Tufts argues that he was “improperly assessed two sentences
under Counts I and III as punishment for the ‘same offense’ within the meaning of the
Fifth Amendment,” and thus his double jeopardy rights have been violated. The State
counters that Tufts has failed to preserve this issue for our review or, alternatively, that
there is no double jeopardy violation. We agree with the State.
1. Preservation of Double Jeopardy Claim
As a general rule, a party must preserve a complaint for appellate review by
making a timely and specific objection, motion, or request in the trial court. See Tex. R.
App. P. 33.1. A potential multiple-punishment double jeopardy claim may be forfeited
if the defendant does not properly preserve the claim by raising it in the trial court.
Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006); Gonzalez v. State, 8 S.W.3d
640, 642–43 (Tex. Crim. App. 2000). Requiring the defendant to preserve his multiple-
punishments double jeopardy claim allows the trial court and the prosecution the
opportunity to remove the basis for the objection and avoid the risk of an unnecessary
retrial. Langs, 183 S.W.3d at 686 n.22 (quoting Gonzalez, 8 S.W.3d at 645–46).
A defendant may, however, raise a double jeopardy claim for the first time on
appeal when the undisputed facts show that the violation is clearly apparent on the face
of the record and when enforcement of usual rules of procedural default serves no
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legitimate state interest. Gonzalez, 8 S.W.3d at 642–43. A double jeopardy claim is
apparent on the face of the trial record if resolution of the claim does not require further
proceedings to introduce additional evidence in support of the claim. Ex parte Denton,
399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Gonzalez, 8 S.W.3d at 643.
As he concedes in his brief, Tufts did not raise a double jeopardy objection in
the trial court. Instead, he argues that his double jeopardy claim does not require
preservation because the violation is clearly apparent on the face of the record. We
disagree.
As mentioned above, injury to a child is a result-oriented offense. See Williams,
235 S.W.3d at 750; Villanueva v. State, 227 S.W.3d 744, 748 (Tex. Crim. App. 2007). This
means that the child’s injury forms the allowable unit of prosecution. Villanueva,
227 S.W.3d at 748. “If the focus of the offense is the result—that is, the offense is a
‘result of conduct’ crime—then different types of results are considered to be separate
offenses, but different types of conduct are not.” Huffman v. State, 267 S.W.3d 902, 907
(Tex. Crim. App. 2008). A defendant may be held criminally responsible for failing to
seek medical care for a child’s underlying injury if the failure to seek care resulted in
“separate and discrete, or at least incrementally greater” injury to the child. Villanueva,
227 S.W.3d at 749. Consequently, whether separate legal theories are separate offenses
depends upon whether the theories differ with respect to the result of the defendant’s
conduct. Huffman, 267 S.W.3d at 905.
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Here, the face of the record does not show a clear double jeopardy violation.
Rather, Counts I and III related to two types of injury to Madison—that is, the counts
alleged conduct that led to different results. Count I charged Tufts with violating the
injury-to-a-child statute by “penetrating the sexual organ and/or anus of [Madison] with
a doll or an unknown object.” Count III charged Tufts with violating the injury-to-a-
child statute by “failing to seek medical attention in a timely manner, and [Tufts] had a
legal duty to act, namely, as a parent or legal guardian.” Thus, Count I charged Tufts
with the result-oriented offense of causing the injury by the use of the doll or object,
and Count III charged Tufts with the separate, result-oriented offense of causing injury
by failing to seek medical attention and the additional injuries she suffered from that
delay.
We conclude that Tufts is not permitted to raise his double jeopardy claim in this
appeal because he did not preserve it in the trial court, and he failed to show a double
jeopardy violation is apparent on the face of the record. See Avalos v. State, Nos. 01-18-
00329-CR, 01-18-00330-CR, 2019 WL 386429, at *3 (Tex. App.—Houston [1st Dist.]
Jan. 31, 2019, pet. ref’d) (mem. op., not designated for publication) (holding that
appellant failed to preserve double jeopardy claim for two convictions for injury to a
child where indictments related to injury to a child resulting in two different, discreet
injuries).
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2. No Double Jeopardy Violation
But even assuming that Tufts could bring his double jeopardy claim for the first
time on appeal, we conclude that there is no double jeopardy violation in this case. It
is true that the State charged Tufts with and tried him for both causing bodily injury to
Madison via the doll incident (Count I) and by omitting to seek medical care for her
after her injuries from the doll were apparent (Count III). Similarly true is that the
Texas Court of Criminal Appeals has held “that the Legislature intended that serious
bodily injury committed against the same victim at the same time should be considered
the same offense for purposes of the double-jeopardy prohibition against multiple
punishments regardless of whether that injury to that victim resulted from the actor’s
act, his omission, or by a combination of his act and omission.” Villanueva, 227 S.W.3d
at 748. In so concluding, however, the Villanueva court distinguished the circumstances
before it from those in another of its opinions, Luna v. State, 493 S.W.2d 854, 859 (Tex.
Crim. App. 1973). Id. at 748–49. According to the Villanueva court, Luna stood for the
proposition that a defendant could lawfully be convicted for “two violations of the same
statutory provision on the same day, so long as the State can prove that two separate
and discrete incidents occurred on that day comprising two violations of the same
statutorily defined offense.“ Id. As the Villanueva court opined:
Had [Villanueva] continued to prevent Legg from taking G.V. to the
hospital on the morning of July 30th, when G.V.’s condition was
obviously deteriorating and it was apparent that he might suffer further
serious bodily injury absent medical intervention, we think that the
principle in Luna could well apply. Under those hypothetical
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circumstances, it could reasonably be said that the failure to seek treatment
for G.V.’s apparent injuries resulted in a separate and discrete, or at least
incrementally greater, injury for which [Villanueva] could also be held
criminally accountable without violating double jeopardy. But here we
can point to no omission that caused any injury beyond that which the
appellant had caused by his act.
Id. at 749 (emphasis added).
Therefore, a defendant is not automatically exposed to double jeopardy simply
because he is charged with causing serious bodily injury to a child by an act and by
omission. See id. Where the act caused an initial injury and that injury was made greater
by later denying the child medical treatment, two discrete offenses may indeed exist
permitting their prosecution without hindrance from the double jeopardy prohibitions.
See id.
This case serves as the perfect illustration of this concept. Tufts caused Madison
to suffer a serious bodily injury via the doll incident. Tufts then opted to forgo medical
treatment for Madison for two days. Multiple medical professionals testified that
Tufts’s decision to forgo medical treatment for Madison theoretically caused greater
trauma to her, placed her in danger of death, and caused the need for a colostomy—a
separate, discrete injury from the injury that occurred from the doll incident. See id. We
hold that, given the record before us in this case, Tufts’s double jeopardy rights were
not violated by the State having charged him with injury to a child by act in Count I
and, separately, injury to a child by omission in Count III. See id. (explaining that a
defendant could be held criminally responsible, without violating double jeopardy, for
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“a separate and discrete, or at least incrementally greater, injury” resulting from a
separate or additional act beyond the initial act); Johnson v. State, 364 S.W.3d 292, 298
(Tex. Crim. App. 2012) (“Separate crimes of aggravated assault could be based upon
separately inflicted instances of bodily injury.”). We overrule Tufts’s fifth issue.
E. Stacked Sentences
In his sixth issue, Tufts argues that the trial court erred by ordering that his
sentence for Count III commences only once the sentence in Count I concludes. In
other words, Tufts complains that the trial court stacked the jury-imposed sentences
for Count I and Count III.7 Specifically, Tufts argues that the trial court erred “because:
(1) the jury considered the transactional nature of the offenses in its determination of
the appropriate punishment; (2) the trial court made no findings to show a need for
increased punishment; (3) [Tufts] is punished more than once for the same offense; and
(4) the resulting confinement became cruel and unusual under the Eighth Amendment.”
We disagree.
1. Standard of Review
We review a trial court’s decision to “stack” or cumulate sentences for an abuse
of discretion. See Tex. Code Crim. Proc. Ann. art. 42.08(a); Beedy v. State, 194 S.W.3d
595, 597 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 250 S.W.3d 107, 115 (Tex. Crim.
The trial court ordered that the sentence imposed in Count II run concurrently
7
with the sentence imposed in Count I.
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Ohio App. 2008); Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d). Under Article 42.08 of the Texas Code of Criminal Procedure, the
trial judge has the discretion to cumulate the sentences for two or more convictions.
Tex. Code Crim. Proc. Ann. art. 42.08(a). An abuse of discretion will generally be found
only if: (1) the trial court imposes consecutive sentences when the law requires
concurrent sentences, (2) the trial court imposes concurrent sentences when the law
requires consecutive ones, or (3) the trial court otherwise fails to observe the statutory
requirements pertaining to sentencing. Nicholas, 56 S.W.3d at 765.
2. Applicable Law
Aside from certain statutorily-defined exceptions, when an “accused is found
guilty of more than one offense arising out of the same criminal episode prosecuted in
a single criminal action, a sentence for each offense for which he has been found guilty
shall be pronounced . . . [and] the sentences shall run concurrently.” Tex. Penal Code
Ann. § 3.03(a). Section 22.04 of the Texas Penal Code defines the offense of injury to
a child. Tex. Penal Code Ann. § 22.04(a). Tufts was convicted under Section 22.04(a)(1)
as to Counts I and III. Id. § 22.04(a)(1). Section 3.03(b) specifically allows consecutive
sentencing when, as in this case, an accused is found guilty of more than one offense
arising out of the same criminal episode for an offense under Section 22.04(a)(1). See
id. § 3.03(b)(6)(A).
“Criminal episode” means the commission of two or more offenses, regardless
of whether the harm is directed toward or inflicted upon more than one person, when
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(1) the offenses are committed pursuant to the same transaction or pursuant to two or
more transactions that are connected or constitute a common scheme or plan or (2) the
offenses are the repeated commission of the same or similar offenses. See id. § 3.01.
Section 3.01 “does not require that all the offenses arising out of the same criminal
episode occur within any particular time frame.” Casey v. State, 349 S.W.3d 825, 831
(Tex. App.—El Paso 2011, pet. ref’d); see Tex. Penal Code Ann. § 3.01.
3. Analysis
Regarding Tufts’s contention that the “jury considered the transactional nature
of the offenses in its determination of the appropriate punishment,” his argument is
similar to his contention in his fifth issue that he was “prosecuted for the same offense
under Counts I and III”; thus, the stacking provisions of Section 3.03 do not apply.
But as discussed above, the offenses that Tufts was found guilty of in Counts I and III
are separate, result-oriented offenses. See Huffman, 267 S.W.3d at 905. We reject this
argument by Tufts.
As to the trial court’s alleged failure to make a finding showing the need for
increased punishment, as the State points out, Section 3.03 “does not specify an
evidentiary burden to trigger the court’s authority to cumulate sentences.” See Bonilla v.
State, 452 S.W.3d 811, 816 n.22 (Tex. Crim. App. 2014) (citing Dale v. State, 170 S.W.3d
797, 801 n.2 (Tex. App.—Fort Worth 2005, no pet.)). Therefore, the trial court was
not required to make a finding showing a need to stack Tufts’s sentences.
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Even though Tufts describes his third complaint under this issue as having been
convicted for the same offense under Count I and III, it appears as though Tufts is
arguing that the single “criminal episode” provision of Section 3.03 was not met in this
case. Here, the offenses charged in Count I, injury to a child causing serious bodily
injury, and Count III, injury to a child by omission, are similar offenses, thus they
constitute same or similar offenses. See Tex. Penal Code Ann. §§ 3.03, 22.04(a)(1).
Because these two convictions meet the requirements under Section 3.03, the trial court
had the discretion to order them to run consecutively. See id. § 3.03(b)(6)(A).
Finally, regarding Tufts’s contention that the trial court’s stacking of sentences
equates to cruel and unusual punishment, as a general rule, punishment that is assessed
within the statutory range for an offense is neither excessive nor unconstitutionally cruel
or unusual. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Both
sentences imposed by the jury fall within the statutory range for the offenses charged
in Counts I and III. See Tex. Penal Code Ann. §§ 12.32(a), 22.04. And Tufts has not
demonstrated why this general rule should not apply nor how the sentences assessed
by the jury in this case were excessive, grossly disproportionate to his crimes, or
unconstitutionally cruel or unusual. Nor has he shown how the trial court’s
discretionary act of stacking the properly assessed punishments is cruel and unusual.
Tufts’s sixth issue also seems to contain an argument that the trial court usurped
his choice to have the jury assess punishment by stacking the sentences. Although Tufts
does not specifically state that he is attacking the constitutionality of Texas Code of
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Criminal Procedure Article 42.08, which grants the trial court the discretion to stack
sentences, that appears to be his argument. Tex. Code Crim Proc. Ann. art. 42.08.
Tufts did not challenge the constitutionality of Article 42.08 in the trial court; thus, to
the extent he is attempting to allege a facial challenge to the constitutionality of Article
42.08, he has forfeited that argument for our review. See Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009). Furthermore, to the extent that Tufts brings a
challenge to the constitutionality of Article 42.08 that did not need to be raised in the
trial court, he has failed to carry his burden to overcome the presumption this court is
to make that a statute is constitutional and the legislature has not acted unreasonably or
arbitrarily. See Luquis v. State, 72 S.W.3d 355, 365 n.26 (Tex. Crim. App. 2002) (citing
Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)). We overrule Tufts’s
sixth issue.
IV. CONCLUSION
Having overruled all six of Tufts’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 3, 2020
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