Hines v. State

551 S.W.3d 771
CourtCourt of Appeals of Texas
DecidedMay 4, 2017
DocketNO. 02–15–00468–CR
StatusPublished
Cited by14 cases

This text of 551 S.W.3d 771 (Hines 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
Hines v. State, 551 S.W.3d 771 (Tex. Ct. App. 2017).

Opinion

TERRIE LIVINGSTON, CHIEF JUSTICE

A jury convicted Joshua C. Hines of one count of continuous sexual abuse of a child under the age of fourteen (Count One) and a separate count of indecency with a child by contact, alleging contact with the complainant's breast (Count Five). In accordance with the jury's assessment, the trial court sentenced appellant to forty-five years' confinement on Count One and twenty years' confinement on Count Five. Appellant brings two points on appeal, challenging the sufficiency of the evidence to support his conviction on Count One and the admission of outcry evidence relevant to Count One. Because he does not challenge his conviction as to Count Five (indecency by contact with the complainant's breast), we affirm his conviction on Count Five. But because we hold the evidence to be insufficient to support a conviction on Count One, we reverse as to Count One and remand for a new trial on the multiple lesser-included offenses underlying that conviction: indecency with a child and aggravated sexual assault.

Background

About every other weekend, Dorothy1 and her two siblings would go to Father's apartment in Haltom City to spend time with him. Dorothy first met appellant, a roommate of Father's, in June 2014 when she was twelve years old and about to enter seventh grade. Appellant was married to a woman who also lived in the apartment. Appellant began purchasing Dorothy numerous gifts, including clothes and a computer for school; he also took Dorothy and her siblings shopping and bowling. Sometime in August 2014, Dorothy went with appellant and his wife on a trip to south Texas to pick up appellant's daughter from a previous marriage and bring her back to Haltom City.

On the trip, Dorothy, appellant, and his wife spent the night in a hotel room that had only one bed. Appellant lay in the middle with Dorothy on one side and his wife on the other. Dorothy reported that appellant reached over and grabbed her breast, and she rolled away from him. Appellant's wife did not know what had happened, and Dorothy did not mention the touching the next day. Because they *774had car trouble, they stayed there for a couple of days.

Following the south Texas trip, Dorothy and appellant became closer and began to talk on the phone and to text each other with increasing regularity. At some point, appellant texted Dorothy a picture of himself in which he is exposing his penis, and Dorothy sent him nude or semi-nude pictures of herself at his request.

According to Dorothy, appellant taught her to kiss when they returned from south Texas. While at Father's apartment, Dorothy and appellant would go into a spare bedroom away from the other adults, where appellant would kiss Dorothy on the lips and reach underneath her clothing to touch her breasts and genitals. Although appellant asked Dorothy to perform oral sex on him, she refused. On another occasion, appellant, his daughter, and Dorothy were watching television late in the night while Father and appellant's wife were asleep in their respective bedrooms. Appellant began to touch Dorothy's genitals over her shorts until she pushed his hand away from her.

School started for Dorothy on August 20, 2014 that year, and she turned thirteen in September. On the night of September 23, 2014, Dorothy sneaked out of Mother's house and met appellant at a nearby grocery store so they could have sex. Appellant drove Dorothy to a shopping center where he performed oral sex on her and vaginally penetrated her. Afterward, appellant drove Dorothy back to Mother's home.

Meanwhile, Mother had begun to notice that Dorothy's behavior was changing for the worse. Dorothy frequently became angry, was quiet and withdrawn, was fighting more with Mother, and was performing poorly in school. After checking Dorothy's cell phone, Mother found "1,415 messages between [Dorothy] and one specific phone number, many at 3:00 and 4:00 in the morning." Those messages were texts from appellant's number to Dorothy's. After speaking with Father, Mother learned, apparently for the first time, about his living arrangement with appellant and that the phone number from which Dorothy had received the 1,415 texts belonged to appellant. Mother also discovered that Dorothy was using social media accounts on Facebook and Kik to exchange messages with appellant.

After making these discoveries, Mother went to Father's apartment to confront appellant. In front of Dorothy and Father, Mother instructed appellant to cease all contact with Dorothy, or she would get the police involved. Appellant did not respond.

Despite Mother's warning, appellant continued to try to contact Dorothy. Mother took Dorothy's cell phone away on September 26, 2014. Afterward, Mother saw a message from appellant to Dorothy, saying that he was worried that Mother would see pictures and texts that were on Dorothy's phone. Mother called the Fort Worth Police Department, but she "didn't have enough evidence at that time." On September 29, 2014, Mother saw a message from Dorothy to appellant stating that Dorothy was worried about being pregnant and that she could not wait to get back into appellant's bed. This message prompted Mother to file a report with the Haltom City Police Department, which began an investigation.

Detective Rick Isham with the Haltom City Police Department used a computer program called Secure View to examine the contents of Dorothy's cell phone. Although this program was able to retrieve data of evidentiary value, the messages transmitted over Kik and Facebook were not retrievable, nor were messages that Dorothy had deleted before the police seized the phone. Among the items of evidence Detective Isham was able to retrieve *775were five or six pictures of a partially-clothed Dorothy as well as a picture of appellant naked.

As part of the investigation, Dorothy was taken to Alliance for Children, where she spoke with Charity Henry, a child forensic interviewer. In the interview with Henry, Dorothy discussed having sex with appellant, including vaginal intercourse and oral sex. Stacey Henley, a sexual assault nurse examiner (SANE), conducted an examination of Dorothy two days later at Cook Children's Medical Center. During the examination, Dorothy told Henley that appellant had penetrated her vagina with his penis and that he had performed oral sex on her during their September 23, 2014 encounter in his car. An arrest warrant for aggravated sexual assault of a child was issued for appellant on the same day.

Evidence Supporting Minimum Thirty-Day Period

In his first point, appellant challenges the sufficiency of the evidence to support his conviction for continuous sexual abuse.

Standard of Review

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781

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Bluebook (online)
551 S.W.3d 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hines-v-state-texapp-2017.