Bobby Ray Houston v. State

• Court: Court of Appeals of Texas
• Decided: October 28, 2015
• Docket: 09-14-00368-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00368-CR ____________________

BOBBY RAY HOUSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 12,070JD

MEMORANDUM OPINION

A jury found appellant Bobby Ray Houston (Houston) guilty of criminal

solicitation of L.M.,1 a minor. See Tex. Penal Code Ann. § 15.031(a) (West Supp.

2014). The jury assessed punishment at ten years in prison and a ten thousand

1 We identify the victims by using initials that disguise their identities. See Tex. Const. art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 1 dollar fine. In a single issue, Houston challenges the legal sufficiency of the

evidence to support the verdict. We affirm.

EVIDENCE AT TRIAL

Testimony of L.M.

L.M. testified that she lives with her grandmother and great-grandmother.

She stated that Houston lives “down the road” from where she lives, and that on

September 28, 2013, when L.M. was sixteen years old, Houston came to her house

in the morning when she was alone. L.M. testified that when Houston came over,

her grandmother and great- grandmother had been gone for a few minutes. L.M. let

Houston inside the house through the front door, and she locked the door after

Houston came inside. L.M. explained that she and Houston went to her bedroom,

where they talked about “boys and stuff[,]” and that Houston touched her on her

shoulder and told her she was beautiful. L.M. said Houston asked her “to have

sex[,]” but they did not have sex because her grandmother came back.

L.M. testified that when her grandmother returned she went to open the door

for her grandmother, and Houston went “[t]o go hide.” L.M. explained that her

grandmother was upset and started searching for Houston once she was inside the

house. L.M. testified that she felt uncomfortable and a little upset when Houston

asked her to have sex with him.

2 L.M. testified that Houston had previously called her on the phone for about

a month, they had talked about boys, and that Houston had given her advice and

told her he wanted to have a relationship with her. L.M. explained she was nervous

and scared, and she agreed that a few days prior to the trial, she had signed an

affidavit of non-prosecution wherein she stated that she did not want to go to court.

L.M. agreed it was hard to talk in court in front of Houston.

Testimony of S.S.

S.S. testified that she is L.M.’s grandmother and had been “raising” L.M. for

most of L.M.’s life. She agreed she left L.M. at home by herself on the morning of

September 28, 2013, but S.S. testified that she returned to the house about fifteen

minutes later. S.S. said that when she returned to the house, she could see a head in

L.M.’s bedroom window. S.S. said she knocked on the door, saying “[l]et me in[,]”

and L.M. opened the door. S.S. testified that she was upset and she “grabbed a

knife, and . . . went looking for whoever was in the house.” S.S. said she opened

the door to the bathroom and entered, and initially she did not see anything. S.S.

further explained as follows:

[S.S.]: . . . That’s when I went to the bathtub, and the bathtub has a shutter that you pull back. And when I pulled it back, there stood Bobby Ray.

[ATTORNEY]: In the bathtub?

3 [S.S.]: That’s right.

[ATTORNEY]: With the shutter closed?

[S.S.]: With the shutter shut.

[ATTORNEY]: Did he have his clothes on?

[S.S.]: Yes.

[ATTORNEY]: Did you say anything to him?

[S.S.]: Yeah, “get out, get out, get out.”

S.S. testified that, prior to that day, she had noticed L.M. was “on the phone

all the time[,]” and L.M. would not let S.S. into L.M.’s bedroom and blocked the

door with a chair. S.S. also explained that Houston had been to their house before

that day, and she had spoken to Houston about talking to L.M. prior to September

28. S.S. also testified that after the incident on September 28, she asked for a

criminal trespass warrant to be served on Houston.

S.S. explained that she signed a form saying she did not want to go to trial

on the case because she knew it was going to be upsetting to L.M. and S.S. didn’t

want to put L.M. through more pain. But, S.S. agreed that Houston should be held

accountable for his actions.

4 Testimony of Captain Carter

Captain Carter of the Jasper County sheriff’s department testified that on the

evening of September 28, 2013, he responded to a call at S.S.’s residence. He

agreed that he served a criminal trespass warning on Houston that S.S. had

requested “a day or two” after September 28, and that the warning advised

Houston to “stay away from that resident[.]”

Testimony of Officer Jordan

Officer Jordan (Jordan), an investigator with the Jasper County sheriff’s

department, testified that she was dispatched to S.S.’s residence on September 28,

2013. Officer Jordan testified that she obtained statements from S.S. and L.M., that

S.S. was “real upset, very upset[,]” and that L.M. was very quiet. Jordan explained

that at first L.M. would not speak much to Jordan and Jordan believed “that’s

[L.M.’s] way of being upset[.]”Jordan did not agree that L.M. was nervous,

shaking, stuttering, or trembling, and Jordan stated that L.M. “was just very, very

quite [sic] and would keep her head down and talked very softly and quietly, you

know, upset.”

Jordan testified that no one tested the window in L.M.’s room for DNA or

fingerprints and that she did not feel such testing was necessary because Houston

“had been caught inside the house.” Jordan agreed that, based on statements by

5 S.S. and L.M., Jordan obtained a warrant for Houston’s arrest and that after

Houston’s arrest and after reading Miranda warnings to Houston, Jordan conducted

an interview with Houston. A video recording was made of Jordan’s interview of

Houston.

Video Interview of Houston

Jordan’s video interview of Houston was admitted into evidence and played

for the jury. In his videoed statement, Houston admitted to talking with L.M. about

running track and about reality shows and to being in the house on the day in

question. Houston admitted he went to the bathroom while he was in the house, but

he denied hiding in the bathroom. He also denied touching L.M., telling L.M. she

was pretty, and asking L.M. to have sex with him on that day or any other time.

Houston admitted he sometimes called the house but only if he was looking for one

of the nephews. He also admitted he sometimes went to the house where S.S. and

L.M. lived to mow the yard, move boxes, or help around the house.

ISSUE ON APPEAL

In a single issue, Houston argues that the evidence is legally insufficient to

prove that he “knowingly and intentionally solicited the minor victim.” In

particular he argues that the evidence was based on “nothing more than mere

speculation” and that L.M.’s testimony was “not sufficiently corroborated by other

6 evidence[,]” such as eyewitness testimony, phone records, fingerprints, or DNA

evidence. The State responds that legal sufficiency does not require corroborating

DNA or “scientific evidence,” and that the jury could have found the testimony of

witnesses other than the victim as well as Houston’s Mirandized statement

sufficiently corroborating to support the verdict.

STANDARD OF REVIEW

In addressing a challenge to the legal sufficiency of the evidence, we review

the evidence in the light most favorable to the jury verdict to determine whether

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 & n.5

(Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307 (1979)); Hayes v.

State, 265 S.W.3d 673, 679 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

“The same standard of review applies to cases involving direct or circumstantial

evidence.” Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).

The jury is the sole judge of the credibility of witnesses and the weight to

afford the testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.

2000). Our review encompasses the totality of circumstances, but we may not

reweigh the evidence and substitute our judgment for that of the jury.

Vodochodsky, 158 S.W.3d at 509; King v. State, 29 S.W.3d 556, 562 (Tex. Crim.

7 App. 2000); Hayes, 265 S.W.3d at 679. We resolve any inconsistences in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000). When, as here, the verdict results at least in part from the jury’s

consideration of circumstantial evidence, we view the evidence “in combination

and its sum total,” and “[i]t is the logical force of the circumstantial evidence, not

the number of links, that supports a jury’s verdict.” Evans v. State, 202 S.W.3d

158, 164, 166 (Tex. Crim. App. 2006); Hayes, 265 S.W.3d at 679.

ANALYSIS

A person may not be convicted of the offense of solicitation of a minor

on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the minor act on the solicitation.

Tex. Penal Code Ann. § 15.031(c). The corroboration that is required for the

offense of solicitation of a minor is analogous to the corroboration requirement

under the accomplice-witness statute. Lankford v. State, 255 S.W.3d 275, 277

(Tex. App.—Waco 2008, pet. ref’d) (comparing Tex. Penal Code Ann. § 15.031(c)

with Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005), and citing Richardson v.

State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985)). Due to the similarities

between these two statutes, the test for evaluating the sufficiency of the

corroboration evidence is the same under each. Richardson, 700 S.W.2d at 594. In 8 assessing the sufficiency of the evidence corroborating the victim’s testimony, the

test used to evaluate such corroboration is to eliminate from consideration the

minor victim’s testimony and then determine whether there is other incriminating

evidence tending to connect the defendant with the crime. Lankford, 255 S.W.3d at

277 (citing Richardson, 700 S.W.2d at 594). It is not necessary that the

corroboration evidence directly link the accused with the crime or that it be

sufficient in itself to establish guilt. Richardson, 700 S.W.2d at 594 (citing

Shannon v. State, 567 S.W.2d 510 (Tex. Crim. App. 1978)).

Here, eliminating L.M.’s testimony from consideration, we conclude that the

State presented other evidence that tends to connect Houston with the offense of

solicitation of a minor. The record shows that S.S. testified that she had previously

talked to Houston about the fact he had been talking with L.M. prior to the day in

question. S.S. further testified that when she returned to her house about fifteen

minutes after she left L.M. in the house by herself, S.S. found the front door

locked, she saw someone in the house through the window, and after L.M.

unlocked the door to let S.S. inside, S.S. found Houston in the bathtub, fully

clothed and behind a shutter. Captain Carter and Officer Jordan with the sheriff’s

department were called to the house later the same day. S.S. and L.M. gave

statements to Officer Jordan, after which Jordan obtained a warrant for Houston’s

9 arrest. S.S. had requested a criminal trespass warrant be issued for Houston after

the incident of September 28, 2013. Houston admitted he was in the house on the

day in question, he admitted he was talking with L.M., and he admitted being in

the bathroom when S.S. returned to the house.

Appellant’s sole challenge under his legal sufficiency argument is that no

“independent evidence” supported or corroborated the victim’s testimony. The jury

was free to believe the witnesses’ testimony over the version of the incident

provided by Houston in his recorded statement. See Curry, 30 S.W.3d at 406. The

jury was permitted to draw reasonable inferences from the evidence, and we must

defer to the jury as the finder of fact. See Threadgill v. State, 146 S.W.3d 654, 663

(Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App.

2000). We find that there was sufficient corroborating evidence presented to the

jury to support L.M.’s testimony that Houston solicited her. See Lankford, 255

S.W.3d at 277-78. Viewing the evidence in the light that supports the verdict, we

conclude that a rational trier of fact could have found beyond a reasonable doubt

that Houston solicited L.M., a minor, for sexual intercourse. We overrule

Houston’s issue on appeal.

10 AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on July 29, 2015 Opinion Delivered October 28, 2015 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.