Jay Tony Rackley v. State

NO. 12-14-00331-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAY TONY RACKLEY, § APPEAL FROM THE 392ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Jay Tony Rackley appeals his conviction for indecency with a child, for which he was
sentenced to imprisonment for fifteen years. Appellant raises five issues on appeal. We affirm.
BACKGROUND
Appellant was charged with two counts of aggravated sexual assault of a child and one
count of indecency with a child. The State abandoned the aggravated sexual assault charges as
well as an enhancement paragraph, and Appellant pleaded “not guilty” to the indecency charge.
The matter proceeded to a bench trial. At trial, C.R., Appellant’s daughter and alleged
victim, testified. The State called additional witnesses, and Appellant rested without calling any
witnesses. Ultimately, the trial court found Appellant “guilty” of indecency with a child and
sentenced him to imprisonment for fifteen years. This appeal followed.
HEARSAY
In his first issue, Appellant argues that the trial court abused its discretion by allowing
Cheron Dyer, who was not an outcry witness,1 to testify concerning statements C.R. made to her
1
Dyer was not an outcry witness, because C.R. was sixteen years old at the time of the alleged crime. As a
result, the outcry statute does not apply and any testimony by her recounting C.R.’s statements would be
inadmissible as hearsay. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2015).
about the alleged offense. At trial, the State questioned Dyer concerning C.R.’s demeanor and
behavior. However, the State did not question Dyer concerning what C.R. said to her. On cross
examination, Appellant questioned Dyer about the written statement she made to the Anderson
County Sheriff’s Department that same day. Specifically, Dyer testified, in pertinent part, as
follows:
Q. Ms. Dyer, . . . [y]ou wrote a statement, did you not, for the police; is that correct?
A. Yes, ma'am.
Q. And that was on September 1st whenever y'all reported this?
A. Yes, ma'am.
Q. And with regard to that, you basically told the police what [C.R.] had told you had happened; is
that correct?
A. On that day, yes. That was what I was instructed to do was to tell them what had occurred.
Q. Did she tell you, as you recounted in your statement, that [Appellant] held her down during the
assault on August 30th?
A. I believe so at one time, yes.
Q. And she told you that she was pretending like that she was asleep during this time period on
August 30th; is that correct?
A. Yes. She told me she tried to act like she was asleep.
Q. Do you know or can you think of any reason if she was pretending like she was asleep that
[Appellant] would need to hold her down?
A. She said she woke up or she pretended to act like she woke up at one time so she could get him
to stop.
Q. And did she tell you that, as you recounted in your statement here on September 1st, that
[Appellant] had ejaculated on her?
A. Yes.
Q. And did she also tell you that she had wiped that off of herself with a pair of shorts that was
still in her room?
A. She said that she had picked up what she believed was a pair of shorts and used that, yes.
Thereafter, the State’s redirect examination transpired, in pertinent part, as follows:
Q. [Appellant’s attorney] asked you some questions about the statement that you wrote.
A. Yes.
Q. Do you remember giving that statement?
A. Yes.
Q. In the statement you included things that [C.R.] had told you that night; is that right?
A. Yes, ma'am.
Q. Did you write in your statement that you had asked [C.R.] if she needed to talk?
2
A. Yes.
Q. And what did [C.R.] tell you?
A. That yes.
Q. You said you went back into the back bedroom; is that correct?
A. Yes, ma'am.
Q. Did [C.R.] tell you that on Thursday night, August 30th, her dad had come into her room and
asked her if he could lay down beside her?
[APPELLANT’S ATTORNEY]: Objection. Hearsay.
[PROSECUTING ATTORNEY]: Judge, under the rule of optional completeness, the door has been
opened by [Appellant’s attorney] who asked specific questions about what [C.R.] said to her and
what she wrote in her statement.
THE COURT: Response?
[APPELLANT’S ATTORNEY]: I don't think she asked specific questions. She mentioned the --
described an outcry but not specific questions as to particulars within the statement is my
recollection, Your Honor.
[PROSECUTING ATTORNEY]: Judge, there were specific questions asked by [Appellant’s
attorney], What did [C.R.] tell you? Did [C.R.] tell you this? Did [C.R.] tell you this? Those are all
things included within the statement.
THE COURT: Overruled.
Q. (BY [PROSECUTING ATTORNEY]) Did [C.R.] tell you that on Thursday night, August 30th,
her dad had come into her room and asked if he could lay down beside her?
A. Yes.
Q. Did [C.R.] tell you that night that she told him that his girlfriend would be home soon?
A. Yes.
Q. Where did [C.R.] tell you that he touched her?
A. He told her -- told me he touched her buttocks and her genitals.
Q. And what did [C.R.] say he used to touch her on her genitals?
A. His fingers and his mouth.
Q. [Appellant’s attorney] asked you if [C.R.] told you if she acted like she was asleep; is that
correct?
A. Yes.
Q. Did she tell you that she acted to him like she had woke up and that's when she saw that he was
naked?
A. Yes.
Q. Did she tell you that she cried herself to sleep and then woke up about an hour later by him
saying he was sorry?
A. Yes.
Q. [Appellant’s attorney] asked you, also, why you were concerned about [C.R.] enough to talk to
her about what was going on in her home. Do you remember that question?
3
A. Yes.
Q. And you said it was because of the physical altercation.
A. Initially, yes.
Q. You said you saw the bruise on the back of her head.
A. Uh-huh.
THE COURT: If you'll answer "yes" or "no," please.
A. Yes. Sorry.
Q. (BY PROSECUTING ATTORNEY) And how did you see the bruise on the back of her head?
A. She said that he had struck her on her head and had left a bruise and she pulled up her hair and
showed it to me.
Q. How would you describe the bruise? Was it a little bruise, a big bruise?
A. It was about quarter size.
Q. And was it blue or yellow or how would you describe it?
A. It was a greenish yellow.
Q. Do you remember about when that was?
A. When I asked her, she said that it happened a couple of days prior because I asked her why she
didn't say anything.
Q. Do you remember when it was that you saw the bruise?
A. No.
Q. Why didn't you do anything about that?
A. She stressed to me that she didn't have anywhere to go and that she was fearful that she would be
placed in foster care. And at that time I expressed to her that I was very concerned about her safety
and welfare and that, you know, we could see what we could -- who we could speak to see about
what she could do where it wouldn't have to be a foster home, but I didn't want her staying where
she wasn't comfortable.
We review a trial court's decision to admit evidence under an abuse of discretion
standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). The trial court abuses
its discretion only when the decision lies “outside the zone of reasonable disagreement.” Id.
Hearsay statements are generally not admissible unless the statement falls within a recognized
exception to the hearsay rule. Mick v. State, 256 S.W.3d 828, 831 (Tex App.–Texarkana 2008,
no pet.). Texas Rule of Evidence 107, the rule of optional completeness, is one such rule. Id.
Rule 107 states, in pertinent part, as follows:
If a party introduces part of an act, declaration, conversation, writing, or recorded
statement, an adverse party may inquire into any other part on the same subject. An adverse party
may also introduce any other act, declaration, conversation, writing, or recorded statement that is
necessary to explain or allow the trier of fact to fully understand the part offered by the opponent.
4
TEX. R. EVID. 107. This rule is one of admissibility and permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly explain a matter
“opened up” by the adverse party. Walters v. State, 247 S.W.3d 204, 217-18 (Tex. Crim. App.
2007). It is designed to reduce the possibility of the jury’s receiving a false impression from
hearing only a part of some act, conversation, or writing. Id. Rule 107 does not permit the
introduction of other similar, but inadmissible, evidence unless it is necessary to explain properly
admitted evidence. Mick, 256 S.W.3d at 831. Further, the rule is not invoked by the mere
reference to a document, statement, or act. Id.2
Here, in his cross examination of Dyer, Appellant sought specific details from her about
C.R.’s outcry. Specifically, Appellant questioned Dyer regarding the details of C.R.’s statement
about Appellant’s alleged improper conduct toward her. These questions left open the possibility
that the trier of fact would receive a false impression––that C.R. fabricated the allegations since
there was a potential inconsistency with her story regarding why Appellant needed to hold her
down if she was feigning sleep. Therefore, we conclude that for the trier of fact to fully
understand the context of C.R.’s conversation with Dyer as recorded in Dyer’s statement and,
further, to better determine whether C.R. was credible, the trial court appropriately permitted the
State to question Dyer concerning the remainder of her statement. 3 Accordingly, we hold that
the trial court did not abuse its discretion in admitting Dyer’s testimony. Appellant’s first issue
is overruled.
TESTIMONY CONCERNING VICTIM’S TRUTHFULNESS
In his second issue, Appellant argues that the trial court abused its discretion by admitting
testimony from Forensic Interviewer Sheila Durden concerning C.R.’s truthfulness.
An expert is not permitted to give an opinion that the complainant or a class of persons to
which the complainant belongs (such as child sexual assault victims) is truthful. Johnson v.
State, 432 S.W.3d 552, 557 (Tex. App.–Texarkana 2014, pet. ref’d) (citing Yount v. State, 872
2
The use of the rule is further limited by Rule 403, which permits a trial court to exclude otherwise
relevant evidence if its unfair prejudicial effect or its likelihood of confusing the issues substantially outweighs its
probative value. Mick, 256 S.W.3d at 831 n.4.
3
Appellant does not argue on appeal that Dyer’s testimony concerning her statement related to any
extraneous offense or that it was unduly prejudicial to him.
5
S.W.2d 706, 712 (Tex. Crim. App. 1993)). Instead, jurors must draw “conclusions concerning
the credibility of the parties in issue.” See Johnson, 432 S.W.3d at 557 (citing Yount, 872
S.W.2d at 710); see also Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (“[T]he
jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.”).
In the instant case, the following exchange occurred during the State’s examination of
Durden.
Q. And although you're not here to testify to the truthfulness of [C.R.], her behavior
during the disclosure in regards to her crying and her demeanor, were those consistent with
someone who had been sexually abused?
[APPELLANT’S COUNSEL]: Objection. Bolstering and goes to truthfulness.
[PROSECUTING ATTORNEY]: Judge, I'm not asking whether or not the child is telling the
truth. In fact, there's case law that specifically allows for that question. Behavior of a child who
has been sexually abused, whether or not it's consistent or not consistent, is admissible.
THE COURT: Overruled.
Q. (BY [PROSECUTING ATTORNEY]): Do you need me to ask that again?
A. Yes, I do.
Q. Would you say that [C.R.]'s behavior and demeanor in regards to her crying during her
disclosure would be consistent with a child who had been sexually abused?
A. Yes, ma'am.
An expert witness may testify that the expert has observed a child exhibit behaviors that
are consistent with child sexual abuse or some other traumatic event. Long v. State, No.
12-07-00256-CR, 2008 WL 5050099, at *4 (Tex. App.–Tyler Nov. 26, 2008, no pet.) (citing
Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). Evidence of nonsexual behaviors,
which are commonly observed in sexually abused children, is admissible to show that the
children have suffered from “some traumatic event.” See Long, 2008 WL 5050099, at *4; Cohn,
849 S.W.2d at 819. This sort of testimony might indirectly serve to buttress the proof that the
child was sexually assaulted, but it is not admitted for that purpose. See Long, 2008 WL
5050099, at *4.
Here, the prosecuting attorney’s question specifically informed Durden and the trial court
that Durden was not there to testify concerning C.R.’s truthfulness. Rather, she asked Durden
whether C.R.’s “behavior during the disclosure[, i.e.] her crying and her demeanor, [was]
consistent with someone who had been sexually abused.” This question was not improper. See
6
Cohn, 849 S.W.2d at 820; Long, 2008 WL 5050099, at *4. Therefore, we hold that the trial
court did not abuse its discretion in overruling Appellant’s objection to it. Appellant’s second
issue is overruled.
HEARSAY
In his third issue, Appellant argues that the trial court abused its discretion when it
allowed C.R.’s counselor, Summer Wilson, to testify about hearsay statements C.R. made to her.
At trial, Appellant objected to the admission of Wilson’s report, which contained a two page
narrative written by C.R. concerning the conduct in which Appellant was alleged to have
engaged.
Standard of Review and Governing Law
“A trial judge's decision on the admissibility of evidence is reviewed under an abuse of
discretion standard and will not be reversed if it is within the zone of reasonable disagreement.”
Franklin v. State, 459 S.W.3d 670, 675 (Tex. App.–Texarkana 2015, pet. ref’d).
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID.
801(d). “Hearsay is not admissible except as provided by statute or [the Rules of Evidence] or
by other rules prescribed pursuant to statutory authority.” TEX. R. EVID. 802. There is no
question that Wilson’s report included hearsay; the question is whether the hearsay was
admissible. Here, Appellant made a hearsay objection. “Once the opponent of hearsay evidence
makes the proper objection, it becomes the burden of the proponent of the evidence to establish
that an exception applies that would make the evidence admissible in spite of its hearsay
character.” Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008).
The State specifically informed the trial court that it relied on Texas Rule of Evidence
803(4), an exception that allows for the admission of qualifying hearsay statements. Rule 803(4)
provides as follows:
The following are not excluded by the hearsay rule, even though the declarant is available
as a witness:
....
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present symptoms, pain,
7
or sensations, or the inception or general character of the cause or eternal source thereof insofar as
reasonably pertinent to diagnosis or treatment.
TEX. R. EVID. 803(4). This exception is based on the assumption that the patient understands the
importance of being truthful with the medical personnel involved to receive an accurate
diagnosis and treatment. Franklin, 459 S.W.3d at 676; see Taylor, 268 S.W.3d at 580.
Moreover, the witness relating the out-of-court statement made for purpose of diagnosis or
treatment need not be a physician for the statement to be admissible. See Taylor, 268 S.W.3d at
584. As long as the statement at issue otherwise met the criteria of the rule, courts have held that
a statement identifying the perpetrator is admissible when psychologists, therapists, licensed
professional counselors, or, under some circumstances, social workers. See id.
In Taylor, the court looked to federal cases involving Rule 803(4) to determine how to
apply the law to nonmedical professionals. See id. at 579. In examining several federal cases,
the court noted that more recent Eighth Circuit holdings emphasized the requirement that the
record reflect, in cases involving child victims, both (1) that the physician (or counselor or
psychologist) explained the importance of knowing the true identity of the assailant to the
efficacy of the diagnosis or treatment and (2) that the child manifested an understanding of the
need to be truthful. See id. at 582. The court agreed that consistent with the rationale for
admitting statements made for purposes of medical diagnosis or treatment over a hearsay
objection, it is appropriate to require the proponent of the evidence to show that (1) the out-of-
court declarant was aware that the statements were made for that purpose and (2) “proper
diagnosis or treatment depends upon the veracity of such statements.” Id. at 588–89.
Application of Rule 803(4)
To determine whether a child understands the importance of truthfulness when speaking
to medical personnel, the reviewing court looks to the entire record. See Green v. State, 191
S.W.3d 888, 896 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d). Although Taylor requires
some showing that the declarant was made aware that proper diagnosis or treatment depended on
the veracity of her statement, the method of meeting the requirement differs depending on
whether the statement was made to a medical or nonmedical professional, as expressed in the
following excerpt.
Still, we recognize that reclining on a therapist's or psychiatrist's couch is not quite the
same as sitting in the emergency room in the immediate aftermath of an injury or on the
8
physician's cold examination table in the interest of diagnosing and curing some exigent disease or
ailment. In the latter contexts, it seems only natural to presume that adults, and even children of a
sufficient age or apparent maturity, will have an implicit awareness that the doctor's questions are
designed to elicit accurate information and that veracity will serve their best interest. This
explains the almost universal tendency of courts under these circumstances to assay the record, not
for evidence of such an awareness, but for any evidence that would negate such an awareness,
even while recognizing that the burden is on the proponent of the hearsay to show that the Rule
803(4) exception applies.
In the therapist's office, however, this tacit presumption is far less compelling. It is not
always so readily apparent (indeed, it may not always be accurate) in the mental-health context
that truth-telling is vital. Not even an older, more mature child (maybe not even an adult) will
necessarily recognize and appreciate the necessity (assuming there is a necessity) always to tell a
mental-health provider the truth in order to assure the efficacy of treatment. In this context we
think it is incumbent upon the proponent of the hearsay exception to make the record reflect both
(1) that truth-telling was a vital component of the particular course of therapy or treatment
involved, and (2) that it is readily apparent that the child-declarant was aware that this was the
case. Otherwise, the justification for admitting the out-of-court statement over a valid hearsay
objection is simply too tenuous.
Taylor, 268 S.W.3d at 589–90 (footnotes omitted). Thus, unlike statements made to medical
professionals, we may not infer from the record that the victim knew it was important to tell the
nonmedical professional the truth in order to obtain treatment or diagnosis. Cf. Franklin, 459
S.W.3d at 677. Rather, we require affirmative evidence in the record on the issue of veracity.
Cf. id.
Here, Wilson testified that she is a clinical psychotherapist with a practice focused toward
child trauma, addiction, attachment, and family therapy. Wilson further testified as follows:
Q. Do you ever try to consider what kind of diagnosis or how to treat the child at that
first visit?
A. Yes. That’s part of what I do at every visit is continually assess for what the current
symptomology (sic) may be and what the best treatment intervention for that particular session
may be.
Q. Is it important for your client and for [C.R.], in this case, to tell you the truth so you
can properly treat and diagnose?
A. Absolutely.
Q. And do you let [C.R.] know that it was important?
A. Absolutely.
Q. Do you do that in every interview?
A. Yes.
Q. Every child therapy session?
A. The very first one and sometimes the second and the third.
Q. Do you go over the goals for treatment for [C.R.]?
9
A. Yes.
Q. And is it pertinent for you to know not only what happened but who the perpetrator is
in order for you to treat [C.R.]?
A. Yes.
Q. Why is that?
A. In trauma in particular, it’s knowing who the potential offender is that correlates the
level of trauma or the intensity of trauma and also predicates whether or not there’s a dual
relationship, if it’s a family member or they’re a friend or a stranger. So it makes a significant
difference in the types of interventions that are used. It also makes a difference in the types of
symptomologies (sic) that may arise. And so it’s very helpful for me to know if they know who
the offender is from the very beginning.
Q. And you said if the offender is related. [C.R.] made an outcry against her biological
dad; is that correct?
A. Correct.
Q. In your treatment or your goal as a counselor, are you going to go over a safety plan
because it’s someone that is related to [C.R.]?
A. I do go over a safety plan. I also go over the plan that’s usually typically in place by
some other agency or entity or family. So I hear about that. Then I begin to ask ancillary
questions just to see where there might be some areas that I could help with.
Q. What was your treatment goal for [C.R.]?
....
A. This case was unique in that at the first visit [C.R.] had made it known that she wasn't
sure where she may be staying, that there was some controversy about placement and there were a
handful -- a few family members and then a friend who were all in communication with who she's
going to stay with. And so at that particular visit, the fundamental safety question was where is she
going to sleep. And so we spent quite a bit of time -- I spent quite a bit of time asking her
questions about the different dynamics in each of the potential locations so that I would have some
idea of what she may be dealing with on top of the trauma. I knew she wasn't going to go to where
she was calling home. And the fact that she may be very transitional for a day here, two days
here, three days here, can actually add to the traumatic stress. And so it was really important for
me to find these things out.
Q. With [C.R.], did you see signs of depression?
A. I did, yes.
Q. Was your goal to also treat that sign of depression?
A. Yes.
Q. Was [C.R.] aware that what she told you would help you to treat that depression and to
treat -- to have a safety plan?
A. [C.R.] like most folks that come in my office, although they know or they're told --
they don't necessarily believe the first session that they need to say these things; they certainly
don't want to talk about these things -- but she did. Her symptoms became biological in nature in
that counseling alone and stable environment alone were not resolving a lot of her symptoms of
depression and so it did become necessary for us to really talk about not only is counseling going
to be a part of this but medication as well.
....
10
Q. And . . . she understood that in writing that [narrative] that it would be helpful for her
diagnosis and her treatment to you; is that correct?
A. Yes. This is actually what’s referred to as a trauma narrative. And in the protocol for
the evidence-based interventions of trauma-focused cognitive behavioral therapy, this is actually
step number four out of [fifteen]. And so it is part of the process. And she knew that that was
what’s going on.
Based on our review of the record, we conclude that (1) Wilson explained the importance
of knowing the true identity of C.R.’s assailant to the efficacy of the diagnosis or treatment, (2)
she conveyed that proper diagnosis or treatment depends upon the veracity of statements such as
the one at issue, (3) she emphasized to C.R. the importance of telling the truth during counseling
sessions, (4) C.R. manifested to Wilson that she understood the necessity of her being truthful,
and (5) C.R. understood that writing the narrative would be helpful for her diagnosis and
treatment by Wilson.4 Accordingly, we conclude that the trial court did not abuse its discretion
in finding that the statements contained within Wilson’s notes, as well as her testimony at trial,
were admissible under Rule 803(4). Appellant’s third issue is overruled.
VICTIM IMPACT TESTIMONY
In his fourth issue, Appellant argues that the trial court abused its discretion in permitting
C.R. to give “victim impact testimony” during the guilt-innocence phase of trial. Specifically,
Appellant objected to testimony the State sought to elicit from C.R. concerning how she felt
about what Appellant did to her, arguing that it “[c]alls for victim impact [testimony].”5
“Victim impact evidence” generally is inadmissible during the guilt-innocence phase of
trial. See Petruccelli v. State, 174 S.W.3d 761, 768 (Tex. App.–Waco 2005), pet. ref'd, 184
S.W.3d 747 (Tex. Crim. App. 2006). It is defined as “evidence of the effect of an offense on
people other than the victim.” Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007);
see Mathis v. State, 67 S.W.3d 918, 928 (Tex. Crim. App. 2002) (testimony not “victim impact”
evidence because not about effect on third person).
4
The record reflects that C.R. wrote the narrative at issue approximately eleven months after her initial
therapy session. Appellant has not ever argued, and, thus, we do not consider, whether the prolonged period of
therapy may have eroded C.R.’s understanding of the importance of her telling the truth. However, we note that
there is no indication in the record that there was any such erosion of her understanding concerning the necessity for
veracity.
5
Appellant did not make a relevance objection at trial and has made no such an argument on appeal.
11
Here, Appellant objected to C.R.’s testifying about the effect Appellant’s conduct had on
her, i.e., her feelings about it and her subsequently suffering from nightmares and post-traumatic
stress disorder. Because the complained-of testimony did not concern the effect of the offense
on people other than C.R., it is not victim impact testimony. Therefore, we hold that the trial
court did not abuse its discretion by overruling Appellant’s objection on that ground.
Appellant’s fourth issue is overruled.
EVIDENTIARY SUFFICIENCY
In his fifth issue, Appellant argues that the evidence is insufficient to support his
conviction of indecency with a child.
Standard of Review and Governing Law
The Jackson v. Virginia6 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo
v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). A successful
legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See
Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
A factfinder may accept one version of the facts and reject another, and it may accept part
of a witness’s testimony, but reject another. See Jones v. State, 428 S.W.3d 163, 168 (Tex.
App.–Houston [1st Dist.] 2014, no pet.); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986); Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.–Houston [1st Dist.]
2000, pet. ref'd) (stating jury can choose to disbelieve witness even when witness's testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
6
443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).
12
Ohio App. 2007). We afford almost complete deference to the factfinder’s credibility determinations.
See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any
inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.
Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(“When the record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and, therefore, defer to that determination.”).
An individual is guilty of indecency with a child if he engages in sexual contact with a
child younger than seventeen years of age. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West
2011). Under Section 21.11, a person engages in “sexual contact” if he, with the intent to arouse
or gratify the sexual desire of any person, touches, either directly or through clothing, the anus,
breast, or any part of the genitals of a child. See id. § 21.11(c)(1). The factfinder can infer the
requisite intent to arouse or gratify the sexual desire from conduct, remarks, or all the
surrounding circumstances. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.–Texarkana 2006,
pet. ref'd). The intent to arouse or gratify may be inferred from conduct alone. Id. No oral
expression of intent or visible evidence of sexual arousal is necessary. Id.
Evidence Supporting Indecency with a Child
Here, C.R. testified in pertinent part that Appellant touched her breasts and vagina when
she was sixteen years old. C.R. further testified that Appellant put his finger in her vagina and
put his mouth on her “butt” and her vagina. C.R. stated that Appellant had removed her pants
and was not wearing any clothes as he rubbed his genitals against her from behind. C.R. further
stated that Appellant had an erection, was masturbating, and ejaculated on her buttocks. C.R.
also testified that she wiped off his ejaculate with the pair of shorts she had been wearing.
Appellant first argues C.R.’s testimony is not sufficiently corroborated. However, a child
sexual abuse victim’s uncorroborated testimony is sufficient to support a conviction for
indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2015); Jones,
428 S.W.3d at 169; see also Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005)
(noting that Article 38.07 “deals with the sufficiency of evidence required to sustain a conviction
for” certain sexual offenses). The state has no burden to produce any corroborating or physical
evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex. App.–Houston [1st Dist.] 2011, no
pet.); see also Lee v. State, 176 S.W.3d 452, 458 (Tex. App.–Houston [1st Dist.] 2004), aff'd,
206 S.W.3d 620 (Tex. Crim. App. 2006) (holding that medical or physical evidence not required
13
to corroborate child victim's testimony). Thus, we conclude that Appellant’s argument is
unsupported in the law.
Appellant further argues that when C.R.’s testimony is compared to the contradictory
scientific evidence,7 her credibility is called into question. However, we stress that we may not
re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the
factfinder. See Williams, 235 S.W.3d at 750.
Courts give wide latitude to testimony provided by child victims of sexual abuse. Jones,
428 S.W.3d at 169; Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.–Corpus Christi
2008, no pet.). We liberally construe this testimony, and, as long as the child communicates to
the factfinder that the touching occurred on a part of the body within the definition of the statute,
the evidence will be sufficient. See Jones, 428 S.W.3d at 169; Lee, 176 S.W.3d at 457. The
requisite intent for the offense of indecency with a child can be inferred from the defendant's
conduct and remarks and all of the surrounding circumstances. See Gonzalez Soto, 267 S.W.3d
at 332; Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.–Houston [1st Dist.] 2007, pet. ref'd).
Having reviewed the record in a light most favorable to the trial court’s verdict, we
conclude that the trial court reasonably could have found beyond a reasonable doubt that
Appellant engaged in sexual contact with C.R.’s vagina. Therefore, we hold that the evidence is
legally sufficient to support the trial court’s verdict. Appellant’s fifth issue is overruled.
DISPOSITION
Having overruled Appellant’s first, second, third, fourth, and fifth issues, we affirm the
trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered December 16, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
7
The evidence reflects that no semen specimen was recovered from the shorts collected from the home.
14
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 16, 2015
NO. 12-14-00331-CR
JAY TONY RACKLEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. B-20,700)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.