Thomas Ardarlyn Chandler AKA Thomas Ardalyn Chandler v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00261-CR
___________________________
THOMAS ARDARLYN CHANDLER AKA THOMAS ARDALYN CHANDLER,
Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court No. 1477977D
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Thomas Ardarlyn Chandler appeals his convictions for aggravated
sexual assault and indecency with a child. In three issues, he contests the sufficiency
of the evidence. We affirm.
In 2016, Chandler’s step-daughter “Lisa” came forward with allegations that
Chandler had abused her. Chandler was indicted on four counts. A jury found
Chandler guilty on three of them: two counts of indecency with a child, for each of
which the jury assessed punishment at ten years, and one count of aggravated sexual
assault, for which the jury assessed punishment at twenty-five years. The trial court
rendered judgments in accordance with the jury’s findings, with the sentences to run
concurrently. On appeal, Chandler complains of deficiencies in the evidence to
support each of the three convictions.
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the 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); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Queeman, 520 S.W.3d at 622.
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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. 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.
We discuss Chandler’s issues based on the order in which the underlying
offenses occurred, beginning with his convictions for indecency. A person commits
the offense of indecency with a child if, with a child younger than 17 years of age, the
person engages in sexual contact with the child or causes the child to engage in sexual
contact. Tex. Penal Code Ann. § 21.11(a)(1). “Sexual contact” means the following
acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast,
or any part of the genitals of a child; or (2) any touching of any part of the body of a
child, including touching through clothing, with the anus, breast, or any part of the
genitals of a person. Id. § 21.11(c).
As to the conviction that resulted from his first act of indecency, Chandler says
the evidence is insufficient because Lisa’s testimony was vague and incomplete. This
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abuse, Lisa testified, occurred when she was six or seven. According to Lisa, she and
her mother had recently moved into an apartment complex in Arlington. Her mother
began dating Chandler, and he moved in soon after. Lisa said that one day around
that time, Chandler beckoned her into his bedroom. Lisa testified that Chandler was
lying on the bed, and he picked her up and placed her so that she was “sitting on top
of” his “private area” “below his stomach”—the body part he used “[t]o have kids.”
On cross-examination, Chandler’s counsel made the matter more explicit. He
asked Lisa if it was her testimony that Chandler had sat her “on top of him, touching
his penis to [her] vagina” while she “had clothes on.” Lisa confirmed that this was
her testimony and that similar incidents had happened “multiple times.”
But Chandler argues that Lisa’s description is insufficient to prove the offense
of indecency as alleged in the indictment: that Chandler caused his genitals to contact
Lisa’s body through clothing. According to Chandler, Lisa “simply never stated that
Appellant’s penis ever contacted her body when she was sitting on Appellant[].” He
says the evidence is therefore insufficient to sustain the conviction. We disagree.
The testimony of a child victim may be sufficient to establish the elements of
indecency. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.]
1978); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no pet.)
(mem. op.). “[W]e cannot expect the child victims of violent crimes to testify with the
same clarity and ability as is expected of mature and capable adults.” Villalon v. State,
791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Courts give wide latitude to testimony
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by a child victim of sexual abuse. Corporon v. State, 586 S.W.3d 550, 562 (Tex. App.—
Austin 2019, no pet.); Thomas v. State, No. 2-08-125-CR, 2009 WL 2356891, at *1
(Tex. App.—Fort Worth July 30, 2009, pet. ref’d) (per curiam) (mem. op., not
designated for publication).
Thus, in one case, we found the evidence sufficient to sustain a conviction for
aggravated sexual assault based in large part on the child complainant’s testimony that
when appellant was lying on a bed, he made the complainant “sit on” his penis, such
that his penis was touching her “butt.” Parker v. State, No. 2-05-265-CR, 2006 WL
2382901, at *5 (Tex. App.—Fort Worth Aug. 17, 2006, no pet.) (mem. op., not
designated for publication). As the child explained to a child protective services
worker, by this she meant that appellant had “put his ‘private part’ in her ‘bottom.’”
Id. We held that from the child’s testimony and the adult CPS worker’s clarification,
the jury could rationally conclude that appellant committed the charged conduct:
causing the child victim’s anus to contact his sexual organ. See id. at *4–5.
As in Parker, Lisa described on direct how Chandler was lying on his bed, and
he picked her up and placed her so that she was “sitting on” his “private area.”1 Also
1
The term Lisa used—“private area”—is similar to language this court has
often used to politely refer to genitalia in indecency cases. See, e.g., Villalobos v. State,
No. 02-12-00192-CR, 2013 WL 1830716, at *1 (Tex. App.—Fort Worth May 2, 2013,
pet. ref’d) (mem. op., not designated for publication) (describing appellant’s indecent
contact with the complainant’s “privates”); Todd v. State, Nos. 02-12-00114-CR, 02-12-
00115-CR, 2013 WL 1457735, at *2 (Tex. App.—Fort Worth Apr. 11, 2013, pet.
ref’d) (mem. op., not designated for publication) (similar, “private part”); Neathery v.
State, Nos. 2-06-082-CR through 2-06-086-CR, 2007 WL 2331004, at *8 (Tex. App.—
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as in Parker, this testimony was later clarified and made more explicit when, on cross-
examination, Lisa agreed that Chandler had sat her “on top of him, touching his penis
to [her] vagina” with “clothes on.” From this, the jury could have rationally inferred
that Chandler committed the charged conduct: causing Lisa’s body to contact his
genitals through clothing. And Chandler’s “intent to arouse or gratify [his] sexual
desire” can be inferred from the “conduct, remarks, [and] all the surrounding
circumstances.” See Jimenez v. State, 507 S.W.3d 438, 440 (Tex. App.—Fort Worth
2016, no pet.). The conduct (placing Lisa’s vagina on his penis) and the circumstances
(doing so while Lisa’s mother was away, on a bed, while lying down) would have
justified an inference of intent to arouse. See, e.g., Tienda v. State, 479 S.W.3d 863, 870
(Tex. App.—Eastland 2015, no pet.) (finding evidence sufficient to show intent to
arouse where appellant touched his penis to complainant’s pelvis on her bed while her
mother was away, though both complainant and appellant were clothed). We
therefore hold the evidence sufficient to sustain this conviction for indecency.2 See
Queeman, 520 S.W.3d at 622.
Fort Worth Aug. 16, 2007, pet. ref’d) (mem. op., not designated for publication)
(similar as to appellant’s “private parts”).
2
Chandler does not assert that the evidence is insufficient in light of the fact
that both he and Lisa were fully clothed during this incident. Nevertheless, we find
multiple cases in which courts have upheld convictions for indecency even though
both the complainant and the appellant were fully clothed. Delacruz v. State, No. 05-
14-01013-CR, 2016 WL 1733461, at *2, *8 (Tex. App.—Dallas Apr. 28, 2016, pet.
ref’d) (mem. op., not designated for publication); Tienda, 479 S.W.3d at 873–74; Cantu
v. State, 366 S.W.3d 771, 774, 777 (Tex. App.—Amarillo 2012, no pet.); Lane v. State,
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Next, Chandler challenges the sufficiency of the evidence to support his second
indecency conviction. This conviction corresponds with an encounter that allegedly
occurred after Lisa, her Mother, and Chandler had moved into a duplex elsewhere in
Arlington. Lisa recalled that Chandler called her into the living room and told her to
sit down. Lisa explained that Chandler began touching her vagina under her clothes
with his hands. According to Lisa’s testimony, Chandler eventually put his fingers
inside her vagina.
However, Chandler says the evidence is insufficient because Lisa’s trial
testimony varied from the accounts that she initially gave to investigators years before.
Chandler observes that according to the testimony of multiple investigators, Lisa
either did not mention that she was digitally penetrated when she first disclosed the
abuse or, in some cases, denied that this happened. CPS investigator Karen Burkett
testified that when she spoke with Lisa, she did not mention that Chandler had put his
fingers inside her. Detective Dara DeWall testified that when Lisa was forensically
interviewed, she demonstrated the way in which Chandler touched her vagina and,
according to the demonstration, Chandler’s fingers did not enter her vagina. Stacey
357 S.W.3d 770, 772, 774 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see In re
J.S., 35 S.W.3d 287, 290 (Tex. App.—Fort Worth 2001, no pet.). In Tienda, for
instance, the appellant argued that the evidence must be insufficient because there
were multiple layers of fabric between the two. 479 S.W.3d at 873. The court
disagreed, reasoning that “[t]he statutory definition of sexual contact simply provides
that it may occur through clothing—without reference to the number of layers of
clothing or fabric separating the perpetrator and the victim.” Id. Here, Lisa’s
testimony that Chandler “touch[ed] his penis to [her] vagina” is sufficient to establish
the requisite contact, regardless of the clothes between them.
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Henley testified that during Lisa’s sexual-assault exam at the hospital, she denied that
Chandler “put his finger . . . in [her] middle part,” as Lisa described it. Chandler says
that Lisa’s trial testimony is inherently unreliable because it is inconsistent with her
initial accounts.
However, each of these witnesses also confirmed that Lisa told them of an
encounter when Chandler had touched the outside of her vagina with his hands, as
she also testified at trial. Burkett testified that Lisa reported how Chandler had
touched the “outside” of her “private parts with his hand.” Henley testified that
during her sexual-assault exam, Lisa recalled how Chandler used his hand to rub the
outside of her vagina. Detective DeWall recalled the hand gesture that Lisa used to
describe what Chandler did “with his hand on her vagina.” And Alexis Harrison of
Alliance for Children testified that during her forensic interview, Lisa described how
Chandler used his hands to touch her “middle part” more than one time. This
conduct would be consistent with the indictment’s allegation that Chandler touched
Lisa’s genitals, regardless of whether Chandler digitally penetrated Lisa.
Moreover, to the extent that Lisa’s trial testimony was inconsistent with her
initial accounts, inconsistencies in the evidence must be resolved in favor of the
verdict. Bohannan v. State, 546 S.W.3d 166, 178 (Tex. Crim. App. 2017); Curry v. State,
30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We have often applied this rule in
indecency cases when there are inconsistencies between the child complainant’s initial
reports to investigators and the child’s testimony at trial. See, e.g., Thompson v. State,
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No. 02-15-00301-CR, 2017 WL 710630, at *2–3 (Tex. App.—Fort Worth Feb. 23,
2017, pet. ref’d) (mem. op., not designated for publication); Suarez v. State, No. 02-10-
00026-CR, 2011 WL 2518792, at *2 (Tex. App.—Fort Worth June 23, 2011, no pet.)
(mem. op., not designated for publication); Perez v. State, No. 2-06-225-CR, 2007 WL
2744914, at *2, *4 (Tex. App.—Fort Worth Sept. 20, 2007, pet. ref’d) (mem. op., not
designated for publication); Franklin v. State, 193 S.W.3d 616, 618–19 (Tex. App.—
Fort Worth 2006, no pet.). In Thompson, for example, we held that the inconsistencies
between the complainant’s forensic interview and her trial testimony did not render
the evidence insufficient. 2017 WL 710630, at *2–3. We reasoned that any
inconsistencies might fairly be attributed to a number of inoffensive factors, none of
which would by necessity render the complainant’s testimony wholly incredible: the
complainant’s tender age; the passage of years between the offense, the outcry, and
the trial; or the different settings under which each account was given—“being
interviewed by a friendly social worker in a small room is hardly the same as testifying
from the witness stand in a courtroom full of people.” Id. at *2.
Similar considerations apply here. Lisa was only six or seven when the abuse
began; she was eleven when she reported the abuse; and she was fifteen by the time of
trial. She gave her initial accounts privately and to sympathetic investigators and
nurses; she gave her trial testimony publicly and subject to vigorous cross-examination
by Chandler’s counsel. Thus, we resolve in favor of the verdict any inconsistencies in
the details, chalking them up to her young age, the passage of time, and the change of
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setting rather than some more serious problem of truthfulness. Lisa’s testimony
concerning Chandler’s contact with her vagina—and the intent that may be inferred
from the act and the circumstances—is sufficient to support this conviction for
indecency. See Queeman, 520 S.W.3d at 622.
Finally, Chandler challenges the sufficiency of the evidence to support his
conviction for aggravated sexual assault. A person commits the offense of aggravated
sexual assault if the person causes the sexual organ of a child to contact the sexual
organ of another person, including the actor, and the complainant is younger than 14
years of age. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B).
This conviction relates to an incident that, according to Lisa’s trial testimony,
occurred when she was eight or nine. Lisa testified that Chandler had her come into
her mother’s bedroom while her mother was at work. Lisa explained that she stood
by the door, and Chandler said, “Come here.” As Lisa told it, he grabbed her and told
her to lay down on the bed; she was scared of him and afraid to walk away, so when
he pushed her onto the bed, she complied. She recalled that as she lay at the edge of
the bed, Chandler stood beside her and took off her clothes, took down his pants, and
“rubbed his private part against” the top of her vagina. The State’s other witnesses
confirmed that Lisa gave similar accounts shortly after she disclosed the abuse.
But Chandler says that this version of events was impossible in light of the
bed’s dimensions and Chandler’s physical proportions. He refers to testimony by two
defense witnesses—Chandler and Lisa’s mother—that the top of the bed stood
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roughly two-and-a-half feet off the ground. It was undisputed that Chandler is six
feet tall. Chandler testified that based on these figures, it would not have been
physically possible for him to be standing at the edge of the bed and to place his penis
on her vagina. Chandler argues that in light of this alleged impossibility, the evidence
is insufficient to support the jury’s conclusion that he caused his penis to contact
Lisa’s vagina.
A comparable argument was rejected in Aleshire v. State, No. 03-06-00712-CR,
2008 WL 269435, at *3–4 (Tex. App.—Austin Jan. 31, 2008, no pet.) (mem. op., not
designated for publication). There, the child complainant testified that the appellant
placed his mouth on her breast as she lay on the upper level of a bunk bed, which was
five feet, four inches off the floor. Id. at *2. The appellant, who was six feet, five
inches tall, argued that the evidence was insufficient because it was “physically
impossible” for him to have placed his mouth on the complainant’s breast based on
the height of the bed. Id. at *2–3. The court disagreed, holding that it was the jury’s
duty to determine the credibility of the complainant’s testimony and its weight relative
to the evidence concerning the height of the bed. Id. at *4.
For the same reason, we will not disturb the jury’s credibility determination in
favor of the complainant. See Queeman, 520 S.W.3d at 622. The jury could have
rationally believed Lisa’s testimony that Chandler placed his penis on her vagina as she
lay on the edge of the bed, and the jury could have disbelieved Chandler’s testimony
that a disparity in height somehow rendered this assault impossible. Indeed, the jury
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could have rationally inferred that, assuming that Chandler had a normal anatomy,
with genitals below the midline of his six-foot frame, this would put Chandler’s
genitalia directly level with Lisa’s. Based on the testimony of Lisa and other witnesses
who corroborated her telling of the assault, we hold that the cumulative force of the
evidence is sufficient to support Chandler’s conviction for aggravated sexual assault.
See Murray, 457 S.W.3d at 448.
Having found the evidence sufficient to support all three of Chandler’s
convictions, we therefore overrule Chandler’s appellate issues and affirm the
judgments.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 23, 2020
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