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Date: 09-22-2020
Case Style:
Donald Phillips v. The State of Texas
Case Number: 01-19-00398-CR
Judge: Sherry Radack
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Daniel C. McCrory
The Honorable Kim K Ogg
Christopher Conrad
Defendant's Attorney:
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Description: Houston, Texas - Criminal Defense Lawyer, Continuous Sexual Abuse of Young Child or Children
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In 2004, when the complainant was seven years old and in the second grade,
appellant began dating the complainant’s mother. By 2005, when the complainant
was in third grade, appellant was responsible for picking up the complainant and her
younger brother, I.T., from school on Friday afternoons. Appellant took the
complainant and I.T. to his house. There, appellant would take the complainant into
his bedroom, have her lay down on his bed, and touch her breasts and vagina with
his hand, both over and under her clothing. Specifically, appellant would pull down
the complainant’s shorts or skirt, place his hand beneath her underwear, and rub the
outer lips of her vagina and clitoris for 20-30 minutes. While appellant abused the
complainant, I.T. slept or watched television in the living room.
Eventually, the complainant moved with her mother and I.T. into appellant’s
home. Appellant began coming into the complainant’s bedroom at night and rubbing
her vagina beneath her underwear to “make [her] feel good.” The complainant
testified that the abuse, which started around 2005, continued weekly until the
appellant was in a motorcycle accident in 2009. The complainant was thirteen when
the motorcycle accident occurred.
The abuse stopped while appellant recovered from the motorcycle accident
but started again in 2010. Appellant continued to abuse the complainant until
January 2013, when Sergio Lozano witnessed appellant touch the complainant
3
inappropriately on her bottom at McCarty’s bar, which is owned by a friend of the
complainant’s family, Maria Vargas. Lozano was Vargas’s employee. Lozano saw
appellant, with his arm around the complainant, place his hand on the complainant’s
bottom for over a minute.1 Lozano asked the complainant why appellant had touched
her in that way. The complainant broke down because she had “been holding it in
for so long and somebody finally saw.” After speaking with Lozano, the complainant
decided to tell her mother about the abuse. She told her mother by telephone the next
day that appellant had been touching her for years and that she had thought it would
stop after the motorcycle accident, but it did not. Her mother did not believe the
abuse had occurred and did not call the police or Child Protective Services (“CPS”).
Because her mother refused to help, the complainant ran away to the home of
her friend, Serena Padilla, and told both Serena and Serena’s mother, Lisa Padilla,
about the abuse. Lisa Padilla called the police. The responding officer, Officer C.
Alonzo with the Houston Police Department, contacted CPS. Officer Alonzo also
contacted the Houston Fire Department, and the complainant was taken to the
hospital where Tiffani Dusong, a certified forensic nurse, conducted a sexual assault
examination of the complainant.
1 Vargas did not personally observe this contact between appellant and the
complainant, but she later reviewed the security footage from that evening in the
bar. She testified at trial that appellant is on the video “cupping” the complainant’s
“behind just like a husband does his wife.” The security footage was not introduced
at trial because it had been erased.
4
According to Dusong, the complainant disclosed that appellant had been
molesting her since she was nine years old by rubbing her clitoris and touching her
breasts. Dusong explained that the clitoris is within the thin inner lips, i.e., the labia
minora, of the vagina and that this description would indicate a penetration of the
female genitalia. Although she did not find evidence of any traumatic injury, Dusong
indicated this was not unusual in a sexual abuse case because genital injuries heal
quickly and, due to the stretchy nature of the hymen, even full penetration of the
female genitalia rarely causes an injury. Dusong further explained that the lack of
physical trauma or injury did not mean that sexual abuse did not occur. She did not
discover anything in her examination of the complainant that was inconsistent with
the history of abuse the complainant described.
CPS concluded that it was not safe for the complainant to return home. The
complainant’s mother agreed to let the complainant stay with Vargas. The
complainant lived with Vargas for about two years and has not had contact with her
mother for almost five years.
Detective G. Garcia with the Houston Police Department investigated the
complainant’s allegations against appellant. As part of his investigation, Detective
Garcia interviewed the complainant and her mother at the Harris County Children’s
Assessment Center (“Assessment Center”). Detective Garcia noted that the
5
complainant seemed to understand the severity of the situation and allegations being
made against appellant.
According to Detective Garcia, in 2010, the complainant was sexually abused
by appellant’s father Charles Phillips. Given this previous abuse, Detective Garcia
confirmed that the allegations against appellant were separate from the previous
allegations against appellant’s father. The complainant did not have any confusion
about the two incidents or who was responsible for the abuse, and she was able to
clearly articulate and distinguish the details of the allegations of abuse against both
appellant and appellant’s father.
Detective Garcia also interviewed appellant. Appellant gave a voluntary
statement in which he admitted to having contact with the complainant’s breast area,
bottom, and knee, but denied that such contact was done for a sexual purpose.
Appellant also denied having continuous sexual contact with the complainant. At the
conclusion of his investigation, Detective Garcia presented the case to the district
attorney, who proceeded with bringing charges against appellant.
In connection with the investigation conducted by CPS and law enforcement,
the complainant was also interviewed by Lisa Holcomb, a forensic interviewer at the
Assessment Center.2 Holcomb testified that the complainant gave elaborate and
2 Holcomb also interviewed the complainant in 2010 about the allegations of sexual
abuse against appellant’s father.
6
specific details about the alleged abuse by appellant, including the time frame and
location of the abuse. Holcomb described the complainant as “very matter of fact,”
“straightforward,” and “able to narrate and give . . . specifics throughout the
interview.” To Holcomb, the complainant did not seem to have any confusion about
the identity of the individual who abused her, the timeframe in which the abuse
occurred, or the manner of sexual contact.
Dr. Lawrence Thompson, Jr., Director of Therapy and Psychological Services
at the Assessment Center, testified at trial that it is common for children to be
victimized by someone they know and that, in most cases, children do not
immediately disclose the abuse or its severity. According to Dr. Thompson, it is not
unusual for an abuse victim to both love and hate her abuser. Nor is it unusual for a
child to be the victim of multiple abusers, as once she becomes a victim of abuse,
she may be at increased risk for future abuse by the same or another perpetrator. A
child may not be able to talk about all of the abuse she has suffered or the number
of people who have abused her. Children often run away to escape abuse. But Dr.
Thompson had not seen any cases where a child fabricated allegations of sexual
abuse to split up a family or to get out of household chores or responsibilities.
At the conclusion of the State’s evidence, the trial court denied appellant’s
motion for a directed verdict, and appellant proceeded with the presentation of his
defense. Appellant’s defense included the theory that the complainant was angry at
7
appellant because of his volatile relationship with the complainant’s mother and
made false allegations of sexual abuse against him in retaliation. The defense also
argued that the complainant’s abuse by appellant’s father taught her how the judicial
process worked.
The defense presented testimony from Detective J.T. Roscoe of the Houston
Police Department, who interviewed the complainant in connection with the case
against appellant’s father. Detective Roscoe explained that, in 2010, he investigated
appellant’s father after appellant and the complainant’s mother found a cell phone
containing disturbing images in the complainant’s possession. Appellant’s father
gave the complainant the cell phone. In Detective Roscoe’s 2010 interview of the
complainant, the complainant did not disclose any abuse by individuals other than
appellant’s father.
The defense next called I.T., who testified that appellant’s father, not
appellant, regularly picked him and the complainant up from school on Fridays. On
the occasions that appellant picked them up from school, I.T. did not recall appellant
and the complainant ever going into appellant’s bedroom. But appellant’s father
would take the complainant into his bedroom and ask I.T. to watch the front door for
anyone coming home. I.T. did not think it was possible for appellant to sneak into
the complainant’s bedroom at night because I.T. would have heard the floorboards
creak. I.T. further testified that the complainant had a reputation for being untruthful
8
and that, between 2005 and 2013, the complainant never mentioned that appellant
was touching her inappropriately. I.T. did not trust the complainant and blamed her
for breaking up the family.
Appellant also testified. He denied that he touched the complainant’s private
parts from the time she was in the third grade up to the seventh grade. He further
denied ever sneaking into the complainant’s bedroom at night or touching her private
parts. He explained that both he and the complainant’s mother would “pat each
other” and all of their children “on the booty” as a sign of non-sexual affection.
Appellant stated that he and the complainant had a respectful father-daughter
relationship until 2010. After his motorcycle accident in 2009, appellant was in a
coma for almost a week. When he returned home, in July 2010, the complainant’s
mother discovered the cell phone his father had given the complainant. After finding
disturbing sexual images and text messages on the cell phone, appellant called his
pastor. Appellant’s pastor told appellant to call the police, which appellant did.
Appellant cooperated with the police investigation of his father.
When questioned about the incident at McCarty’s bar, appellant testified that
he did not touch the complainant inappropriately but merely “grazed” her bottom.
Appellant testified that he did not mean it in a sexual way and did not derive any
sexual gratification from it. According to appellant, the complainant had a history of
not being truthful. He believed the complainant made up years of sexual abuse in
9
order to split up his marriage to the complainant’s mother. And he testified that the
complainant’s mother believed him over the complainant.
The last defense witness was the complainant’s mother. She stated that the
complainant had a history of untruthfulness. Before the incident at McCarty’s bar in
2013, the complainant’s mother was working with appellant on their marriage,
which the complainant disagreed with. According to the complainant’s mother, she
and appellant got into a fight at the bar and the complainant was angry with appellant
about the fight. The complainant’s mother did not believe the complainant about the
McCarty’s bar incident because the complainant had “lied throughout her whole
life.” The complainant’s mother had seen the appellant pat the complainant on the
bottom in the house and in public, but the complainant’s mother did the same all the
time.
The complainant’s mother did not believe that appellant ever touched the
complainant inappropriately. According to her, the complainant ran away to stay
with her friend. When she was notified that the complainant was taken to the hospital
for a forensic examination or rape kit, the complainant’s mother went to the hospital
to see the complainant. But the complainant did not want to come home. Although
CPS gave the option for the complainant’s mother to bring the complainant home,
the complainant’s mother agreed to allow the complainant stay with Vargas.
10
As to the abuse perpetrated by appellant’s father, the complainant’s mother
testified that, in June 2010, she found a cell phone that appellant’s father had given
to the complainant. The cell phone contained disturbing text messages and images
of the complainant. Both she and appellant alerted the police and cooperated in the
investigation of appellant’s father.
Insufficient Evidence and Directed Verdict
In his first issue, appellant argues that the evidence is legally insufficient to
support his conviction for continuous sexual abuse of a child. In his second issue,
appellant argues that the trial court erred in denying his motion for a directed verdict.
Because these two issues constitute challenges to the legal sufficiency of the
evidence, we will address them together.
A. Standard of Review
Every criminal conviction must be supported by legally sufficient evidence as
to each element of the offense that the State is required to prove beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 315 (1979); Adames v. State, 353 S.W.3d
854, 859 (Tex. Crim. App. 2011). To determine whether this standard has been met,
we review all of the evidence in the light most favorable to the verdict, and we decide
whether a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d
893, 902 (Tex. Crim. App. 2010). Sufficiency of the evidence is measured by the
11
elements of the offense as defined by the hypothetically correct jury charge for the
case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Finally, a
challenge on appeal to the denial of a motion for directed verdict is a challenge to
the legal sufficiency of the evidence and is reviewed under the same standard.
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).
B. Applicable Law
As set out in section 21.02 of the Texas Penal Code, a person is guilty of the
offense of continuous sexual abuse of a child if:
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether the
acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is a child younger
than 14 years of age, regardless of whether the actor knows the age of
the victim at the time of the offense.
TEX. PENAL CODE § 21.02(b).
The State may seek one conviction under section 21.02 for multiple acts of
sexual abuse over an extended period of time. See Price v. State, 434 S.W.3d 601,
605–06 (Tex. Crim. App. 2014). An “act of sexual abuse” is defined under this
statute as an act that violates one or more laws, including aggravated sexual assault.
TEX. PENAL CODE § 21.02(c)(4). A person commits the offense of aggravated sexual
assault if the person intentionally or knowingly causes contact with or the
penetration of the anus or sexual organ of a child under the age of fourteen by any
12
means. Id. § 22.021(a)(1)(B)(i). “A person acts intentionally, or with intent, with
respect to . . . a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.” Id. § 6.03(a). “A person acts knowingly,
or with knowledge, 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 intent of the accused ordinarily is not determined by direct evidence but
is inferred from circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex.
Crim. App. 1978); Salisbury v. State, 867 S.W.2d 894, 896–97 (Tex. App.—Houston
[14th Dist.] 1993, no pet.). “[I]ntent may be inferred from the acts, words, or conduct
of an accused, including the circumstances surrounding the acts in which the accused
engages.” Salisbury, 867 S.W.2d at 897; see also Mauldin v. State, 628 S.W.2d 793,
795 (Tex. Crim. App. 1982); Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App.
1982).
C. Analysis
Appellant argues that the State failed to prove the element of intent beyond a
reasonable doubt and, therefore, the evidence is legally insufficient to support his
conviction for continuous sexual abuse of a child and the trial court should have
granted his motion for a directed verdict. According to appellant, the evidence is
legally insufficient because there was no confession, he denied touching the
complainant for a sexual purpose, the complainant had a reputation for being
13
untruthful, there was no medical evidence of injuries, and the complainant had been
abused by appellant’s father.
Appellant’s argument ignores that the uncorroborated testimony of a victim
alone is sufficient to support a conviction for continuous sexual abuse of a child. See
TEX. CODE CRIM. PROC. art. 38.07 (providing that uncorroborated testimony of child
victim suffices to support conviction for offense under Penal Code chapter 21, which
includes offense of continuous sexual abuse of a child); Smith v. State, 340 S.W.3d
41, 49 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“The testimony of a victim,
even when the victim is a child, is alone sufficient to support a conviction for sexual
assault.”); Gutierrez v. State, 585 S.W.3d 599, 607 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (“The complainant’s testimony, standing alone, is sufficient to
support appellant’s conviction for continuous sexual abuse of a young child.”). Here,
the complainant testified as to each element of the offense. The complainant testified
that appellant, her stepfather, began abusing her in 2005, when she was about eight
years old, and that the abuse continued until 2013, when she was about sixteen years
old. She testified that appellant would rub the outer lips of her vagina, as well as her
clitoris, with his fingers for 20-30 minutes at a time. She further testified that this
abuse occurred numerous times over the course of years, sometimes on a weekly
basis, at appellant’s home in Harris County, Texas. Her testimony, standing alone,
is sufficient to support appellant’s conviction for continuous sexual abuse of a child.
14
TEX. CODE CRIM. PROC. art. 38.07; Smith, 340 S.W.3d at 49; Gutierrez, 585 S.W.3d
at 607.
As to appellant’s argument that there was insufficient evidence of intent
because he never confessed and, in fact, testified he did not touch the complainant
for a sexual purpose, we note that this is not the only type of evidence that may
support a finding of intent. As stated above, intent may be inferred from the acts,
words, and conduct of the accused. See Salisbury, 867 S.W.2d at 897; Dues v. State,
634 S.W.2d 304, 305 (Tex. Crim. App. 1982). Here, the jury was presented with
evidence that, on numerous occasions, appellant touched the complainant’s vagina,
including her clitoris, with his fingers. To do so, appellant pulled down the
complainant’s shorts or skirt and placed his hand beneath her underwear. The
complainant testified that appellant told her he touched her to “make [her] feel
good.” Furthermore, Dusong, the forensic nurse examiner who performed the sexual
assault examination of the complainant, testified that the complainant’s description
of how appellant touched her clitoris indicated that there was a penetration of the
complainant’s genitalia. Based on this evidence, the jury could have reasonably
inferred that appellant intended to penetrate the complainant’s vagina with his
fingers.
Regarding the lack of injury or corroborating medical evidence, “[n]either
physical nor medical evidence was required to corroborate the child complainant’s
15
testimony, which is otherwise sufficient to support a conviction.” Gutierrez, 585
S.W.3d at 607. Dusong testified that the lack of evidence of a traumatic injury was
not unusual in a sexual abuse case. Among the reasons given by Dusong for lack of
evidence of an injury were that genital injuries heal quickly; because of the stretchy
nature of the hymen, there is rarely an injury even with full penetration of the female
genitalia; and if there is a lesser degree of penetration, e.g., only between the outer
lips of the vagina, it would be rare to see an injury. Dusong also explained that the
lack of physical trauma or injury did not mean that sexual abuse did not occur. She
did not find anything in her examination that was inconsistent with the complainant’s
description of the abuse.
Finally, appellant’s arguments that the complainant was a “liar,” that her
brother contradicted portions of her testimony, and that the evidence shows the
complainant was abused by appellant’s father, not appellant, rest on evidentiary
weight and credibility determinations that are reserved for the jury. Adames, 353
S.W.3d at 860 (jury is sole judge of weight and credibility of evidence). may choose
to believe none, some, or all of the evidence presented. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991). On sufficiency review, this Court must
defer to the jury’s credibility determinations. See id. We do not weigh the credibility
of the evidence on appeal. Morales v. State, No. 01-17-00377-CR, 2018 WL
16
6693528, at *2 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) (mem. op.,
not designated for publication).
Here, the complainant testified that appellant abused her for many years
between the ages of eight and 16. Holcomb and Detective Garcia testified that
complainant was able to distinguish the abuse perpetrated by appellant’s father from
the abuse perpetrated by appellant, and that she did not exhibit any confusion as to
the timeframe, contact, and identity of each abuser. Finally, Dr. Thompson testified
that it is not unusual for a child to be the victim of multiple abusers, as once she has
become a victim of abuse, she may be at increased risk for future abuse by the same
or another perpetrator. A rational juror could have found beyond a reasonable doubt
that, from the time that the complainant was approximately eight years old until she
was sixteen, appellant committed two or more acts of sexual assault against the
complainant, despite the evidence of the complainant’s reputation for untruthfulness.
We decline appellant’s invitation to substitute our own judgment for that of the jury.
Viewing the evidence in the light most favorable to the verdict, we hold that there is
legally sufficient evidence that appellant committed the offense of continuous sexual
abuse of a child.
We overrule appellant’s first and second issues.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: