Jordan Joshua Fein v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 1, 2024
• Docket: 05-23-00047-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed August 1, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00047-CR

JORDAN JOSHUA FEIN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-83406-2021

MEMORANDUM OPINION Before Justices Smith, Miskel, and Breedlove Opinion by Justice Smith

Appellant Jordan Joshua Fein was convicted by a jury for the first-degree

felony offense of continuous sexual abuse of a young child, M.G. See TEX. PENAL

CODE ANN. § 21.02. The jury assessed appellant’s punishment at twenty-six years’

confinement in the Institutional Division of the Texas Department of Criminal

Justice. In one issue, appellant challenges the legal sufficiency of the evidence to

support his conviction. For the reasons discussed below, we affirm. Evidence Presented at Trial

Appellant was M.G.’s stepbrother. Appellant’s father and M.G.’s mother met

in 2012 and married in February 2014. Appellant lived in New York with his mother

until 2014. After he graduated high school, he moved to Texas to live with his father,

M.G.’s mother, and M.G. He was eighteen years old at the time, and M.G. was nine.

M.G. was excited when appellant moved in. She did not have any other

siblings that lived with her, so when he moved in, she had someone with whom she

could play video games, watch television, jump on the trampoline, and just hang out.

They were home alone together a lot in the summers, but not as often during the

school year. They had a normal stepsibling relationship at first, but then the

relationship changed. When she was around eight or nine, she asked appellant what

a “boner” was. She was in the living room sitting in one of the recliners at the time,

and appellant had just got out of the shower. He went into his bedroom and came

back out with a blanket wrapped around him; he was nude underneath. He lifted up

the blanket and showed her his erect penis. Appellant asked her if she wanted to

touch it, but she said, “No.” He grabbed her wrist and made her touch it anyways.

He made her “stroke him” by moving her hand back and forward. M.G. testified

that it was very gross, and she felt weird and uncomfortable when it was happening.

She explained that his penis was warm, and she could feel his heartbeat. She jerked

her hand away, he laughed, and then they each went to their own bedrooms.

–2– After that incident, appellant became more inappropriate with M.G. When

she walked by him, he would slap her on her butt. He would also grab her chest if

she did something he did not like or killed his character when they were playing

video games. Sometimes, if he was very angry, he would squeeze her chest hard,

and it would leave bruises. He also asked her multiple times if he could see her

chest. She showed him once and thereafter refused.

One time when they were roughhousing, he chased her around the house,

caught her, threw her to the ground, got on top of her, held her hands above her head

with one hand, and lifted up her shirt and squeezed her “boob” very hard under her

bra. She was scared and in pain; the incident left bruises. On another occasion,

appellant told her they could “do it.” She tried to pretend that she knew what “it”

was and told him, “Yeah, we can do that.” They were lying in his bed; she was lying

on her stomach playing a video game, and he got on top of her, attempted to put his

penis through the leg hole in her shorts, but could not, so he stopped. His penis

touched the back of her thigh, about an inch or two down from her butt. Another

time when she was lying on her stomach in his bed, he pulled her shorts and

underwear down and tried to penetrate her butt with his penis. She grabbed his arm

and dug her nails into it, trying to make him stop because of the pain. He eventually

stopped and told her to go to her room. This time his penis touched her anus.

Appellant also tried to put his penis in M.G.’s mouth. They were watching a

movie, again lying in appellant’s bed, and appellant asked her to lie her head on his

–3– chest. After she did, he pulled his penis out of his shorts, put his hand on the back

of her head, and pushed her head down toward his penis. Appellant asked her if she

wanted to put his penis in her mouth, and she responded, “You’re going to have to

put it past my teeth first.” He pushed her head down two or three times and was able

to penetrate her lips but could not get it past her clenched teeth. She threatened to

bite him, and he stopped. M.G. testified that pre-ejaculate came out of his penis and

into her mouth during the incident. It was very gross, tasted salty, and was kind of

slimy. M.G. left his room, went to the bathroom, brushed her teeth and her lips, and

went to her room.

M.G. testified that the last incident of abuse occurred when she was thirteen

or fourteen. They were at appellant’s grandmother’s swimming in the pool, and

appellant was roughhousing with her by picking her up and throwing her. She was

trying to stay away from him because she was not comfortable around him, but he

kept holding on to her and pushing or throwing her under water. When she tried to

get out of the pool, he pinned her to the side and started pressing his pelvis against

her backside. He pressed up against her repeatedly, moving forward and backward,

and she could feel his penis on her “butt crack.”

The abuse stopped when appellant moved out of their house in November

2018. She knew what happened was wrong and told some of her friends about it but

did not tell any adults because appellant told her they would not believe her and

would not like her. However, around Mother’s Day in 2021, M.G. outcried to her

–4– parents. She had been struggling in school and was having an issue with her friend

group. Her mental health took a steep decline, and she messaged her sister saying

she wanted to take some pills and not wake up. Her sister notified her parents. When

her parents talked to her about her desire to commit suicide, they told her she could

tell them anything. She felt she needed to tell them what happened with appellant.

She was emotional and could not verbally describe what happened, so she wrote a

letter. Her mother reported the abuse to the police the next day, and M.G. was

forensically interviewed.1

The police contacted appellant, and he agreed to talk. Appellant initially

denied the accusations, stating that he and M.G. had only spoken about certain

things. However, as the interview progressed, appellant explained that he might

have accidentally shown her, or she might have accidentally seen, his penis. He later

admitted that he did show her his penis and told her to grab it to see how it felt. He

also admitted to removing her pants and underwear on one occasion and rubbing his

penis against her anus. As to oral sex, appellant admitted that his penis went past

her lips but that she closed her teeth, so he stopped. He also admitted grabbing and

squeezing her breasts.

Defense counsel emphasized appellant’s mental capacity throughout trial and

pointed out his confusion or slowness at times to answer questions during his

1 M.G. was sixteen at the time of the forensic interview and eighteen at the time of trial. –5– interrogation, his misspelling of certain words on diagrams he drew, his

misstatement of M.G.’s name at the beginning of the interrogation, his inability to

sign his name because he could not write in cursive, his forgetfulness of certain

words or what month it was, and how he went off in tangents during the

interrogation, telling the officers about many unrelated topics. There was no dispute

that appellant had a birth defect in which the white matter connecting the right and

left hemispheres of his brain failed to develop. He was also in a car accident in 2017

and suffered a severe concussion, gash to the back of his head, and had to be

resuscitated. Appellant told the officers that he had short term memory loss and that

he needed help because of his brain condition but no one had been able to help him.

The testifying investigator acknowledged that appellant agreed and responded to

suggestions made by the officers during the interview.2

Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence, we consider whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010). The sufficiency of the evidence is

measured by the elements of the offense as defined by a hypothetically correct jury

2 Defense counsel moved to suppress appellant’s confession on the grounds that he did not freely and voluntary give the confession due to his neurological deficits resulting from the birth defect in his brain. However, on appeal, appellate counsel does not challenge the trial court’s denial of appellant’s motion to suppress or the admission of appellant’s confession at trial. –6– charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We review

the evidence in the light most favorable to the verdict and defer to the trier of fact to

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic to ultimate facts. Jackson, 443 U.S. at 319; see also Merritt

v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Isassi, 330 S.W.3d at 638.

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

testimony, Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010), and may

choose to believe or disbelieve any part of any witness’s testimony. Wyatt v. State,

23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

When conducting a legal sufficiency review, we consider all evidence in the

record regardless of whether it was properly or improperly admitted. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). A criminal conviction may be

supported by both direct and circumstantial evidence as well as all reasonable

inferences that may be drawn from the evidence. Id. “Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007).

A person commits the offense of continuous sexual abuse of a child if the

person commits two or more acts of sexual abuse, during a period that is thirty or

more days in duration, against a child victim that is younger than fourteen years of

age. TEX. PENAL CODE § 21.02(b). The indictment in this case included the

–7– following acts of sexual abuse as authorized by section 21.02(c)(2) and (c)(4) of the

penal code: aggravated sexual assault of a child under fourteen years of age by

intentionally and knowingly (1) causing the anus of M.G. to contact the male sexual

organ of the defendant, or (2) causing the mouth of M.G. to contact the male sexual

organ of the defendant; and indecency with a child by contact by intentionally and

knowingly, with the intent to arouse or gratify the sexual desire of any person,

engaging in sexual contact by (1) causing the hand of M.G. to touch part of the

genitals of the defendant, or (2) causing the buttocks of M.G. to touch part of the

genitals of defendant, including through clothing. Id. § 21.02(c)(2), (4); see also id.

§ 21.11(a)(1), (c) (indecency with a child); § 22.021(a)(1)(B)(iv), (v), (a)(2)(B)

(aggravated sexual assault of a child). It is well established that a child victim’s

testimony alone is sufficient to support a conviction for continuous sexual abuse of

a child. TEX. CODE CRIM. PROC. ANN. art. 38.07; Garner v. State, 523 S.W.3d 266,

271 (Tex. App.—Dallas 2017, no pet.).

In his sole issue on appeal, appellant challenges the sufficiency of the

evidence to support his conviction. He argues that there was no medical or scientific

evidence, no forensic interview records, no results from an examination by a sexual

assault nurse, and no body camera or surveillance footage presented to the jury.

Instead, the entire case rested on M.G.’s testimony and appellant’s statement to

police. As to M.G.’s testimony, appellant appears to challenge its specificity. He

asserts that M.G. described several sexual incidents but spread them out over five to

–8– six years—from when she was eight until she was thirteen or fourteen—and did not

describe instances that occurred within thirty days or more in duration. Specifically,

appellant contends, “There was never any mention of any events happening daily

back-to-back or within a 30-day period.”3 Appellant further argues, “There is no

way to know which of the alleged incidents the jury used to substantiate proof

beyond a reasonable doubt to satisfy the elements for the continuous charge.”

The State responds that the evidence is sufficient because, at the very least,

M.G. testified to an act of sexual abuse occurring when she was eight or nine years

old and another act occurring when she was thirteen, which satisfies the thirty-day

duration element of continuous sexual abuse of a young child. We agree.

We first note that, for the offense of continuous sexual abuse of a young child,

the jury is “not required to agree unanimously on which specific acts of sexual abuse

were committed by the defendant or the exact date when those acts were committed.”

TEX. PENAL CODE § 21.02(d). The jury must, however, unanimously agree that the

defendant committed two or more acts of sexual abuse during the required

timeframe—a period that is thirty or more days in duration—and before the victim’s

fourteenth birthday. Id.

3 To the extent that appellant’s argument is that the abuse had to occur more frequently, i.e. multiple times within a thirty-day window, appellant is mistaken as to the law. The offense requires the abuse to have occurred across a period of time that is thirty or more days in duration, not within thirty days. See TEX. PENAL CODE § 21.02(b)(1). Thus, there must be at least thirty days separating the first act of abuse and the last act of abuse. –9– Although M.G. could not remember how old she was when each incident

occurred, she testified that it began when she was eight or nine years old when she

asked what a “boner” was and he showed her and made her touch his erect penis.

She also testified that the last time it happened she was thirteen or fourteen. M.G.

explained that this last incident happened during the summer when appellant rubbed

his penis on her “butt crack” in the swimming pool. She further testified that

appellant moved out in November that year and that she would have turned fourteen

that month. Thus, the evidence shows that, when the incident in the pool occurred

earlier that summer, M.G. was thirteen years old. Furthermore, M.G. was clear that

the abuse happened over multiple years, pretty much the entire time appellant lived

with them. This evidence supports a finding that appellant committed two or more

acts of sexual abuse over a period of thirty of more days in duration when M.G. was

younger than fourteen years old.

In addition, a forensic interviewer testified and explained to the jury that time

is a very abstract and difficult concept for children to understand. She further

explained that children often do not know the date and time events are occurring so

that information does not get encoded with the memory of the event. Instead,

children associate memories of events with big events, like Christmas or their

birthday, or with where they lived at the time. Children also have a difficult time

separating and ordering events when they are chronic. Thus, it was not abnormal

–10– for M.G. to be unable to detail the acts of abuse in order of when they occurred or

describe when precisely they happened.

Based on the evidence presented, we conclude that a rational trier of fact could

have found beyond a reasonable doubt that appellant committed two or more acts of

sexual abuse, during a period of thirty of more days in duration, against M.G. when

she was younger than fourteen. Therefore, we overrule appellant’s sole issue on

appeal.

Conclusion

We affirm the judgment of conviction.

/Craig Smith/ CRAIG SMITH JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 230047F.U05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JORDAN JOSHUA FEIN, Appellant On Appeal from the 380th Judicial District Court, Collin County, Texas No. 05-23-00047-CR V. Trial Court Cause No. 380-83406- 2021. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Smith. Justices Miskel and Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 1st day of August 2024.

–12–