Bottenfield v. State

77 S.W.3d 349, 2002 WL 398705
CourtCourt of Appeals of Texas
DecidedMay 16, 2002
Docket2-00-487-CR, 2-00-488-CR
StatusPublished
Cited by151 cases

This text of 77 S.W.3d 349 (Bottenfield v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bottenfield v. State, 77 S.W.3d 349, 2002 WL 398705 (Tex. Ct. App. 2002).

Opinions

OPINION

HOLMAN, Justice.

INTRODUCTION

Appellant Steven Edward Bottenfield appeals his convictions for aggravated sexual assault and indecency with A.H. and T.H., children under fourteen years of age. A jury found appellant guilty of the offenses and assessed his punishment at life imprisonment for each offense. On appeal, appellant raises ■ sixteen issues complaining of error during voir dire, improper jury argument, jury charge error, evidentiary error, and legal and factual insufficiency of the evidence. We affirm.

Background

In appellate cause number 2-00-487-CR, the indictment alleged in two counts that on or about September 30, 1997, appellant intentionally and knowingly penetrated the sexual organ of A.H. with his finger and engaged in sexual contact with A.H. by touching her genitals. In appellate cause number 2-00-488-CR, the indictment alleged in two counts that on or about September 30, 1997, appellant intentionally and knowingly caused the sexual organ of T.H. to contact his sexual organ and engaged in sexual contact with T.H. by touching her genitals.

The testimony at trial showed that Edwin Hammock, A,H.’s and T.H.’s father, allowed appellant to move into a spare bedroom in Hammock’s house in 1997. Hammock’s common-law wife Kim, his two other children, .and their friend Sharon also resided in the home. Sharon’s son and boyfriend would occasionally spend the night or’ stay for several days. Hammock and Kim sold drugs and engaged in daily drug use in the home.

A.H. and T.H. often went into appellant’s bedroom to draw and color on his coffee table. In February 1998, Hammock found letters written by appellant to his wife and five or six pairs of children’s pants “cut to fashion [provocative] underwear.” Hammock confronted appellant, called him a “pervert,” and kicked him out of the house. In January 1999, both Hammock and Kim were arrested for drug-related offenses. Hammock was incarcerated at the time of trial, and his parental rights to his children had been terminated. After the arrests, three of Hammock’s children, including T.H. and A.H., were placed in the foster home of Peggy Roy. In May of 1999, during a telephone con[353]*353versation monitored by Roy, T.H. told her biological mother, Chiquita, that a man named Steve had “touched her in between her legs.” Immediately after the call, T.H. told Roy in greater detail that appellant had touched her vaginal area and “put his thing right there.” At trial, T.H., who was ten at the time, specifically recalled one encounter with appellant in which he took her to his room and removed their clothes. His penis was “sticking up,” and he made her touch his penis and told her to “lick it.” Appellant got on top of her and touched her breasts with his hands and put his mouth on her breasts. He put his finger on the “outside” of her “privates” and touched his penis to her “privates.” He moved the “middle part of his body” and “clear stuff’ came out of his penis onto her skin. Appellant told T.H. not to tell anyone about the incident. After that, T.H. was scared of appellant and tried to avoid him. During her sexual assault examination in July 1999, T.H. made a substantially similar statement to medical personnel. T.H. had a normal physical examination, which was not inconsistent with the alleged abuse.

A.H., who was six at the time of trial, recounted one instance when appellant took her to his bedroom and “touched [her] in a bad way.” According to A.H., appellant took her clothes off and touched her on the inside of her “winkie” or “private parts” with his finger. She said it felt “bad” and that appellant told her to “keep it a secret.” A.H. identified her female sexual organ as her “private” on an anatomically correct doll. A.H. made her outcry to Dr. Polakoff, the child psychologist who conducted an assessment of A.H. for the foster agency. A.H. told Dr. Polakoff that appellant put his finger in her “privates” and then put his finger in his mouth. She said that appellant took down his pants, but did not touch her with his genitalia. She diagnosed A.H. with “major depression.” During her sexual assault examination, A.H. told medical personnel that appellant put his finger “up [her] winkie” and made her touch his penis or “goober.” She said appellant “did it with [her] winkie two times.” There were no physical findings of abuse. A.H. was unable to identify appellant at trial.

Appellant testified and denied sexually assaulting T.H. and A.H. He admitted to being addicted to methamphetamine when he moved into the Hammock home, that he used methamphetamine by injection with Hammock and Kim, and that he had an extensive criminal history. He also admitted to cutting up eight to ten pairs of children’s pants he found in the attic of the house. According to appellant, several of the strippers from Baby Dolls would come home with him and would wear the children’s clothes to sexually arouse him. Appellant stated that he got along well with the children and enjoyed having them in his room to color and play and that the children liked him.

Based on the evidence, the jury found appellant guilty of all four counts in the indictments.

Sufficiency of the Evidence

In issues nine through sixteen, appellant contends the evidence is legally and factually insufficient to support his convictions.

A person commits aggravated sexual of a child if he intentionally or knowingly causes the penetration of the female sexual organ of a child by any means or causes the sexual organ of a child to contact his sexual organ. Tex. Penal Code Ann. § 22.021(a)(l)(B)(i), (iii) (Vernon Supp. 2002). A person commits indecency with a child if he engages in sexual contact with the child. Id. § 21.11(a). “Sexual contact” means any touching of the breast or any part of the genitals of another person [354]*354with the intent to arouse or gratify the sexual desire of any person. Id. § 21.01(2).

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App.2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The critical inquiry is whether, after so viewing the evidence, any rational -trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). 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 v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

In contrast, in reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

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Bluebook (online)
77 S.W.3d 349, 2002 WL 398705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bottenfield-v-state-texapp-2002.