Opinion issued July 6, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00286-CR, NO. 01-22-00287-CR ——————————— STEPHEN CHARLES HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 207th District Court Comal County,1 Texas Trial Court Case Nos. CR2016-725 & CR2016-726
1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases between courts of appeals). Under the Texas Rules of Appellate Procedure, “the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3. The parties have not cited, nor has our own research revealed, any conflict between the precedent of the Third Court of Appeals and that of this court on any relevant issue. MEMORANDUM OPINION
A jury found appellant Stephen Charles Hernandez guilty of the first-degree
felony offenses of aggravated sexual assault of a child and sexual assault of a child.
Appellant pleaded true to an enhancement paragraph and, in accordance with the
trial court’s charge, the jury sentenced appellant to confinement for life. In two
issues, appellant contends that (1) the trial court erred in denying his challenges for
cause to two prospective jurors and (1) the evidence is insufficient to support his
convictions. We affirm.
Background
In September 2016, appellant was charged by indictment with one count of
aggravated sexual assault of a child (Cause No. 2016-725) and one count of sexual
assault of a child (Cause No. 2016-726). The indictments included an enhancement
paragraph alleging that appellant had been previously convicted of a third-degree
felony sex offense in Maryland. Appellant pleaded not guilty to the charged offenses.
The cases were consolidated and tried together.
At trial, appellant stipulated to the enhancement paragraph regarding his
previous out-of-state conviction. Following opening statements, the State called the
following witnesses: Michaela Vick, Julie Wiley, Angie Mickey, Danny Dufer,
Ronald Womack, Ashlyn Henshaw, H.B., the complainant, and Noella Hill.
2 1. Michaela Vick
Michaela Vick, a crime scene technician with the Comal County Sheriff’s
Office, testified that appellant’s fingerprints matched the fingerprints on a prior
judgment of conviction for a third-degree sex offense involving a child in Maryland
in 1992. The arrest report, which was attached to the out-of-state judgment, stated
that the complainant alleged appellant fondled her vaginal and breast areas on
numerous occasions while she babysat his children.
2. Julie Wiley
Wiley was an assistant principal at Mountain Valley Middle School in Canyon
Lake. H.B. was an eighth grader at the school in 2016.
On the morning of March 9, 2016, H.B. was sent to Wiley’s office for a dress
code violation. Wiley testified that typically a student either changes clothes or is
picked up by a parent. She testified that H.B.’s dress code violation was not a serious
issue.
Before Wiley reached her office, H.B. ran down the hallway and out of the
school. Wiley testified that when she caught up to H.B., she was “very heated,
animated”’ and yelled “you can’t make me go back” and “I’m not going home to
that pedophile.” When Wiley and H.B. returned to school, H.B. refused to talk to
Wiley but spoke with the school counselor, Angie Mickey. Upon learning what H.B.
3 had shared with Mickey, Wiley called Children’s Protective Services (CPS) and law
enforcement.
3. Angie Mickey
The State designated Mickey as its outcry witness. In 2016, Mickey was the
school counselor at Mountain Valley Middle School.
On March 9, 2016, Wiley brought H.B. to Mickey’s office to speak with her.
Mickey testified that H.B. was crying and very upset. H.B. told Mickey that her
mom’s boyfriend fondled her breasts and genitalia, that he bought her gifts in
exchange for performing sexual acts, and that she performed “blow jobs” on him.
H.B. told Mickey that her mom’s boyfriend bought her a phone and a pass to an
amusement park in exchange for performing sexual acts on him when they lived in
Iowa. H.B. told Mickey that the sexual abuse began when she was in sixth grade.
H.B. told Mickey that, on the previous day, her mother walked in while H.B.
was performing oral sex on her mom’s boyfriend, and that her mom called her a
“whore.” Mickey testified that she learned through school records that H.B.’s
mother’s boyfriend was Stephen Hernandez. Mickey testified that H.B. was afraid
the abuse would happen again if she went home and was fearful that someone would
find out.
4 4. Sergeant Dufer
Sergeant Dufer with the Comal County Sheriff’s Office was assigned to
investigate the sexual assault case involving appellant. Sergeant Dufer ordered a
forensic interview of H.B. at the Children’s Advocacy Center (CAC) and a sexual
assault nurse examiner (SANE) exam. Following the CAC interview, Sergeant Dufer
executed a search warrant on H.B.’s residence to collect any physical and forensic
evidence present at the home.
Sergeant Dufer testified that he collected a pair of basketball shorts and an
orange t-shirt from a clothes hamper in the bathroom that H.B.’s mother shared with
appellant. He interviewed several people including H.B., her mother and
grandmother, appellant’s boss and co-workers, appellant’s daughters, and a family
friend. Sergeant Dufer discovered that H.B. had a membership pass to
Adventureland in Des Moines, Iowa, and that appellant had been previously
convicted of a third-degree sex offense in in Maryland.
As part of the investigation, Sergeant Dufer ordered swabs be taken from the
floor of appellant’s bedroom and H.B.’s bedroom closet where appellant allegedly
ejaculated the day before H.B.’s outcry. Sergeant Dufer testified that the lab results
of those swabs were inconclusive.
5 5. Sergeant Womack
Sergeant Womack of the Comal County Sheriff’s Office assisted in the
execution of the search warrant on H.B.’s residence in March 2016. He operated the
department’s coherent laser system used to detect the presence of biological material
such as semen. Sergeant Womack testified that the system fluoresces if it detects
biological material. Based on information obtained in the investigation, Sergeant
Womack used the laser machine to look for semen on the floor of H.B.’s bedroom
closet, the clothes hamper in appellant’s bathroom, and a pair of appellant’s shorts
found in the hamper. The analysis of appellant’s shorts revealed the presence of
semen on the right inside leg of the shorts.
6. Ashlyn Henshaw
Ashlyn Henshaw, a DNA Section Supervisor for the Texas Department of
Public Safety (DPS) Crime Laboratory, testified about the laboratory results for the
items collected and submitted in the case to the crime lab for testing. The items
consisted of swabs from the floor of H.B.’s home, shorts and a t-shirt belonging to
appellant that were collected from a hamper in the master bathroom which appellant
shared with H.B.’s mother, and an oral swab that was collected from H.B. by the
SANE examiner. Henshaw testified that the presumptive testing for semen on the
floor swabs was negative, the presumptive testing for semen on the t-shirt was
6 negative, and the testing on H.B.’s oral swab was inconclusive. She testified that the
presumptive test for semen on appellant’s shorts was positive for male DNA.
7. H.B.
H.B. was twenty years old at the time of trial. She testified that her biological
father was incarcerated at Leavenworth Federal Penitentiary in Kansas. She believed
that her mother lived in Canyon Lake but was unsure of the exact location.
When H.B. was eleven years old, she lived in Marion, Iowa, with her mother
and two brothers. H.B. testified that she shared a bedroom with her brothers, and
that she had her own bed and her brothers shared a twin bed. When she was in fifth
grade, H.B., her mother, and her brothers moved into appellant’s house. H.B.
testified that the house was big, with eleven bedrooms and six-and-a-half bathrooms.
She was excited to move into the house because she had her own room and bathroom
and there was a horse she could ride. H.B. testified that appellant was nice and
welcoming when they first moved in and that she looked up to him as a stepfather.
H.B. testified that one day she asked appellant if he would take her for a
motorcycle ride. They went to B-Bop’s restaurant in Altoona, Iowa, and from the
restaurant they could see an amusement park called Adventureland. Appellant asked
H.B. if she would like to have a season pass to Adventureland, and H.B. replied that
she would. Appellant told her that she would have to take off her clothes when they
got home in exchange for a pass. When they returned home, they went to H.B.’s
7 bedroom, and appellant sat on the bed while H.B. stood in front of him and took her
clothes off. Appellant asked H.B. if he could touch her breasts. When H.B. said yes,
appellant grabbed her breasts. H.B. testified that she felt uncomfortable. Appellant
told her not to tell anyone and, if she did, she would never see her grandmother again,
she and her brothers would be separated and “go into the system,” and H.B. would
not be able to see her mother again. After H.B. put her clothes back on, appellant
took her to Adventureland to get a season pass.
H.B. testified that her relationship with appellant returned to normal
afterwards and she acted as if nothing had happened. H.B. testified that she was
ashamed of what had happened and blamed herself. She testified that her family had
been previously involved with CPS and she knew that they could remove children.
H.B. testified that she was scared that if she told anyone she would have nowhere to
live and that she would be separated from her brothers.
H.B. testified that when she was in sixth grade, she asked her mother for a
phone but her mother could not afford to buy her one. Appellant later offered to get
H.B. a phone in exchange for “at least a blow job.” H.B. testified that appellant
wanted to try to have sex with her as well. While her mother was in the shower, H.B.
and appellant went to the garage. Appellant instructed H.B. to take her clothes off,
and appellant took his clothes off as well. H.B. testified that appellant attempted to
8 have sex with her but it hurt and she pushed appellant off of her. Afterwards, H.B.
performed oral sex on appellant.
H.B. testified that appellant tried to have sex with her on multiple occasions
but that it did not work. On one occasion, appellant tried to have sex with H.B. in
his bed and used a small pink vibrator. H.B. testified that appellant eventually got a
phone for her.
H.B, her mother, and her brothers later moved to Houston with appellant. H.B.
testified that she continued to perform sexual acts with appellant in exchange for
gifts. On one occasion, appellant took H.B. to a hotel to have sex with her in
exchange for a new iPhone and clothes. H.B. testified that appellant penetrated her
a little bit that time and that he took her to the same hotel on multiple occasions.
In addition to the hotel, appellant came to H.B.’s room on many occasions to
touch her while she was sleeping and that she began wearing a bra at night because
of it. On one occasion, appellant told H.B. “next time, don’t wear a bra.” H.B.
testified that her mother, who was in the nearby laundry room, overheard appellant
and “started freaking out.” H.B. testified that this incident was the first time her
mother learned about appellant’s abuse.
The summer before H.B. began eighth grade, she moved to a house on Irene
Drive in Canyon Lake with her mother, brothers, and appellant. H.B. testified that
her mother began sleeping in H.B.’s room to protect her from appellant. Appellant
9 continued coming into H.B.’s room at night to wake her up and tell her to come back
to his room. H.B. testified that she “was done trying to have sex” with appellant
because it hurt, and she mainly performed oral sex on him instead.
H.B., her mother and brothers, and appellant later moved into a house off Eden
Ranch Drive in Canyon Lake. One day, appellant was home early when H.B.
returned from school. When H.B. asked appellant why he was home so early, he
showed her an iPad in a black and pink case and told H.B. she could have it if she
gave him “a blowjob at least.” H.B. testified that appellant was wearing an orange
Texas Longhorns shirt and long shorts at the time. Appellant and H.B. went into her
bedroom closet where she began performing oral sex on appellant. H.B. testified that
when her mom arrived home, appellant quickly pulled his pants up and ran out the
back door to his bedroom. H.B.’s mother began screaming and calling H.B. names.
The next day, H.B. received a dress code violation at school. H.B. testified
that a dress code violation meant that a student could either change clothes or receive
an in-school suspension (ISS). H.B. opted to change clothes but there were no extra
shirts in the school nurse’s office so H.B. was told she had to sit in ISS for the day.
H.B. refused and ran out of the school. When the school’s assistant principal and a
police officer caught up with H.B. and asked her where she was going, H.B. told
them she was not going back to her “crazy mom” or “pedophile stepdad.” H.B.
returned to school and told the school counselor about appellant’s sexual abuse of
10 her. Afterwards, CPS picked H.B. up at school and took her to the hospital for a
SANE exam. H.B. testified that she and her brothers were placed in a youth home
shelter. H.B’s grandparents were later granted temporary guardianship of H.B. and
her brothers. H.B. and her brothers returned to live with their grandparents in Iowa.
8. Noella Hill
Hill, a registered nurse and SANE examiner, performed a SANE exam on
H.B. on March 9, 2016. Hill testified that a SANE exam consists of taking a patient’s
medical history, a physical exam, and a genital exam.
During the history portion of the SANE exam, H.B. told Hill about appellant’s
sexual abuse of her over the years, the dress code violation at school, and her outcry
to Mickey. Hill testified that H.B. was very upset during the exam and was concerned
about her mother getting into trouble. Hill collected oral swabs of H.B.’s mouth. Hill
testified that H.B. had eaten, drank, and brushed her teeth/used mouthwash between
the incident of sexual abuse and her SANE exam. Hill testified that H.B. declined a
genital examination. H.B.’s medical examination records were admitted into
evidence as State’s Exhibit 45.
After both sides rested, the jury found appellant guilty of aggravated sexual
assault of a child and sexual assault of a child. During the punishment phase,
appellant pleaded true to a prior conviction for a third-degree sex offense as alleged
in the indictments. After the jury found the enhancement paragraph true, it assessed
11 appellant’s punishment at confinement for life in the Texas Department of Criminal
Justice in each cause. The trial court ordered that the sentences run consecutively.
Sufficiency of the Evidence
We first consider appellant’s second issue in which he claims that the evidence
is legally insufficient to support his convictions because, if sustained, that issue
would afford the greatest relief. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co.,
995 S.W.2d 675, 677 (Tex. 1999) (citing TEX. R. APP. P. 43.3). In re D.L.W.W., 617
S.W.3d 64, 77 n.31 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (“Because legally
insufficient evidence requires a rendition of judgment in favor of the party raising
the challenge, we must address a legal-sufficiency challenge first.”); Campbell v.
State, 125 S.W.3d 1, 4 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
A. Standard of Review
We review appellant’s challenge to the sufficiency of the evidence under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we examine all
the evidence in the light most favorable to the verdict and determine whether a
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 318–19. Evidence is insufficient under this
standard in four circumstances: (1) the record contains no evidence probative of an
element of the offense; (2) the record contains a mere “modicum” of evidence
12 probative of an element of the offense; (3) the evidence conclusively establishes a
reasonable doubt; and (4) the acts alleged do not constitute the criminal offense
charged. See id. at 314, 318 n.11, 320; Laster v. State, 275 S.W.3d 512, 518 (Tex.
Crim. App. 2009); Mottin v. State, 634 S.W.3d 761, 765 (Tex. App.—Houston [1st
Dist.] 2020, pet. ref’d).
The jury is the sole judge of the credibility of witnesses and the weight to give
their testimony, and our role on appeal is simply to ensure that the evidence
reasonably supports the jury’s verdict. Montgomery v. State, 369 S.W.3d 188, 192
(Tex. Crim. App. 2012). The jury may reasonably infer facts from the evidence
presented, credit the witnesses it chooses, disbelieve any or all of the evidence or
testimony proffered, and weigh the evidence as it sees fit. Galvan-Cerna v. State,
509 S.W.3d 398, 403 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Canfield
v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
Inconsistencies in the evidence are resolved in favor of the verdict. See Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
“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). “Each fact need
not point directly and independently to guilt if the cumulative force of all
incriminating circumstances is sufficient to support the conviction.” Nisbett v. State,
13 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). “On appeal, the same standard of
review is used for both circumstantial and direct evidence cases.” Hooper, 214
S.W.3d at 13.
B. Applicable Law
A person commits aggravated sexual assault of a child if the person
intentionally or knowingly causes the penetration of the mouth of a child younger
than fourteen years of age with the male sexual organ of the person or causes the
mouth of a child younger than fourteen years of age to contact the male sexual organ
of the person. TEX. PENAL CODE § 22.021(a)(1), (2)(B). A person commits sexual
assault of a child if the person intentionally or knowingly causes the penetration of
the mouth of a child younger than seventeen years of age with the male sexual organ
of the person or causes the mouth of a child younger than seventeen years of age to
contact the male sexual organ of the person. Id. § 22.011(a), (c).
C. Analysis
Appellant contends that the evidence was insufficient to support his
convictions because (1) physical and DNA evidence linking him to the charged
offenses was lacking, (2) there were inconsistencies in the witnesses’ testimony, (3)
H.B. had more than one motivation to make an outcry, and (4) the other witnesses’
testimony was not corroborating evidence but merely bolstering. The State responds
that when the combined and cumulative force of the evidence, and reasonable
14 inferences from that evidence, are viewed in the light most favorable to the jury’s
verdict, the evidence of appellant’s guilt was overwhelming and therefore legally
sufficient.
The uncorroborated testimony of a child victim is alone sufficient to support
a conviction for sexual assault of a child. TEX. CODE CRIM. PROC. art. 38.07(a);
Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
The State has no burden to produce any corroborating or physical evidence. Martines
v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see
also Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d,
206 S.W.3d 620 (Tex. Crim. App. 2006) (“The lack of physical or forensic evidence
is a factor for the jury to consider in weighing the evidence.”).
Here, H.B. testified that when she was eleven years old, appellant took her on
a motorcycle ride to B-Bop’s restaurant in Altoona, Iowa. They could see an
amusement park called Adventureland from the restaurant. H.B. testified that
appellant asked her if she would like to have a season pass to Adventureland and,
when she replied “yes,” he told her she would have to take off her clothes when they
got home in exchange for the pass. H.B. testified that when they returned home, they
went to H.B.’s bedroom, appellant sat on her bed while H.B. stood in front of him,
she took off her clothes, and appellant grabbed her breasts. After H.B put her clothes
back on, appellant took her to Adventureland to get a season pass.
15 H.B. testified that when she was in sixth grade, she asked her mother for a
phone but her mother could not afford to get her one. Appellant later offered to get
H.B. a phone in exchange for “at least a blow job.” While her mother was in the
shower, H.B. and appellant went to the garage. Appellant instructed H.B. to take her
clothes off, and appellant took his clothes off. H.B. testified that appellant attempted
to have sex with her, but it hurt and she pushed him off of her. Afterwards, H.B.
performed oral sex on appellant. H.B. testified that appellant tried to have sex with
her on multiple occasions but it did not work. On one occasion he tried to have sex
with H.B. in his bed and he used a small pink vibrator. H.B. testified that appellant
eventually got a phone for her.
H.B. testified that she continued to perform sexual acts with appellant in
exchange for gifts after they moved to Houston. On one occasion, appellant took
H.B. to a hotel to have sex with her in exchange for a new iPhone and clothes. H.B.
testified that appellant penetrated her a little bit that time, and that he took her to the
same hotel on multiple occasions. In addition to the hotel, appellant came to H.B.’s
room on many occasions to touch her while she was sleeping.
H.B. testified that the summer before she began eighth grade, when she was
thirteen years old, H.B., her mother, her brother, and appellant moved to Canyon
Lake. Appellant regularly came into H.B.’s room at night to wake her up and tell her
to come back to his room because H.B.’s mom was asleep in H.B.’s bed in an attempt
16 to protect her from appellant. H.B. testified that she “was done trying to have sex”
with appellant because it hurt and she mainly performed oral sex on him instead.
After they moved to a house off Eden Ranch Drive in Canyon Lake, appellant
was home early one day when H.B. returned from school. H.B. testified that when
she asked appellant why he was home early, he showed her an iPad in a black and
pink case and told H.B. she could have it if she gave him “a blowjob at least.”
Appellant and H.B. went into her bedroom closet and she began performing oral sex
on appellant. H.B. testified that appellant was wearing a Texas Longhorns shirt and
shorts at the time. H.B. testified that when her mother arrived home, appellant
quickly pulled his pants up and ran out the back door to his bedroom.
H.B.’s testimony alone about appellant’s pattern of sexual abuse of her
beginning when H.B. was eleven years old until she was fourteen years old is
sufficient to support appellant’s convictions. See TEX. CODE CRIM. PROC. art.
38.07(a). Contrary to appellant’s suggestion, the lack of physical or DNA evidence
tying him to the charged offenses does not render H.B.’s testimony insufficient.
Neither DNA evidence nor physical evidence is required to support a sexual assault
conviction. See Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d) (“The absence of DNA or fingerprint evidence at trial does not
render the other evidence insufficient to support the conviction.”) (citing Garcia v.
State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (noting victim’s
17 testimony alone was sufficient to sustain rape conviction, despite lack of physical
evidence)); Sims v. State, 84 S.W.3d 768, 774 (Tex. App.—Dallas 2002, pet. ref’d)
(upholding conviction where victim’s testimony identified defendant as attacker
despite absence of “scientific evidence”); see also Dudley v. State, No. 01-20-00175-
CR, 2021 WL 4848470, at *3 (Tex. App.—Houston [1st Dist.] Oct. 19, 2021, pet.
ref’d) (mem. op., not designated for publication) (stating absence of defendant’s
DNA on knife and insufficient male DNA on complainant’s oral swab did not render
other evidence insufficient to support defendant’s sexual assault conviction). We
note that while the laboratory analyses of the swabs taken from H.B.’s mouth was
inconclusive due to the low quantification of male DNA, there was no evidence
presented that appellant ejaculated in H.B.’s mouth during the last incident of sexual
abuse before her mother arrived home, and there was evidence that H.B. had eaten,
drank, brushed her teeth or used mouthwash between the incident and her SANE
exam. Further, analysis revealed the presence of semen on the inside of the shorts
appellant wore during the last act of sexual abuse. This evidence was consistent with
H.B.’s testimony that appellant was wearing those shorts at the time she performed
oral sex on him and when he ran out of her room because H.B.’s mother had arrived
home.
The jury also heard Wiley’s and Mickey’s testimony about H.B.’s demeanor
and reaction to the dress code violation on March 9, 2016. Wiley, the assistant
18 principal, testified that H.B. was “very heated, animated” when Wiley caught up
with her after H.B. had run out of school, and that she yelled “you can’t make me go
back” and “I’m not going home to that pedophile.” Mickey, the school counselor,
testified that H.B. was crying and very upset when she met with her, and that H.B.
eventually confided that her mother’s boyfriend had fondled her breasts and genitalia
and bought her gifts in exchange for sexual acts. H.B. expressed a fear of going home
and being around appellant again to Mickey. Hill, the SANE examiner, testified
about her evaluation of H.B. and the description of the sexual abuse H.B. provided
during the exam. Hill testified that H.B. told her what happened at school and about
her outcry to Mickey, and that H.B. provided details about appellant’s abuse of her.
The jury also saw photographs of H.B. at each of the homes where she had lived
with appellant and a copy of the pass to Adventureland that appellant gave her in
exchange for the first sexual act she performed for appellant, all of which were
consistent with H.B.’s timeline and description of events. There was also evidence
that appellant had been previously convicted of sexually abusing a young girl in a
manner similar to the manner in which he first abused H.B.
Appellant argues that H.B. had more than one motivation for making the
outcry. In particular, he points to H.B.’s testimony that she blamed appellant for her
dog’s death, she wanted to live with her grandmother in Iowa, and she was upset
about being in trouble for the dress code violation at school. He asserts that although
19 a sexual assault conviction can be supported on the uncorroborated testimony of the
child sexual assault victim, there were inconsistencies in the witnesses’ testimony
and that, under these circumstances, an appellate court can find that the evidence is
legally insufficient to support the conviction.
The jury acts as the sole judge of the credibility of the witnesses at trial and
may choose to believe all, some, or none of the testimony presented. Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Ledford v. State, 649 S.W.3d 731,
739 (Tex. App.—Houston [1st Dist.] 2022, pet. denied). We defer to the
responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. See Febus v. State, 542
S.W.3d 568, 572, 575 (Tex. Crim. App. 2018) (“Though Appellant argues that it was
more reasonable for the jury to conclude that the police had made a clerical mistake,
we must defer to the jury’s resolution regarding competing inferences and
evidentiary conflicts”); see also Riordan v. State, No. 03-16-00297-CR, 2017 WL
3378889, at *6 (Tex. App.—Austin Aug. 4, 2017, no pet.) (mem. op., not designated
for publication) (“Appellant’s interpretation of the evidence and testimony,
however, simply reflects conflicts in the evidence. These were all matters left to the
jury to resolve. Reconciliation of any conflicts or contradictions in the evidence is
within the exclusive province of the jury.”) (citations omitted). As a reviewing court,
we may not re-evaluate the weight and credibility of the evidence in the record and
20 thereby substitute our own judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007).
Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that a rational trier of fact could have found the essential elements of the
charged offenses beyond a reasonable doubt. Accordingly, we hold that the evidence
is sufficient to support appellant’s convictions for the offenses of aggravated sexual
assault of a child and sexual assault of a child.
We overrule appellant’s second issue.
Challenges for Cause
In his first issue, appellant contends that the trial court erred in denying his
challenges for cause to Jurors Nos. 7 and 61.
A. Standard of Review and Applicable Law
A venireperson is challengeable for cause if he “has a bias or prejudice against
the defendant or against the law upon which either the State or the defense is entitled
to rely.” Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009); see TEX.
CODE CRIM. PROC. art. 35.16(a)(9), (c)(2). To be challengeable, the bias or prejudice
must “substantially impair the prospective juror’s ability to carry out his oath and
instructions in accordance with the law.” Gardner, 306 S.W.3d at 295. “Before a
venireperson may be excused based on bias or prejudice, the law must be explained
to him, and he must be asked whether he can follow that law regardless of his
21 personal views.” Id. The proponent of a challenge for cause has the burden of
establishing that the challenge is proper by showing that “the veniremember
understood the requirements of the law and could not overcome his prejudice well
enough to follow the law.” Id.
“We review a trial court’s ruling on a challenge for cause with considerable
deference because the trial judge is in the best position to evaluate a veniremember’s
demeanor and responses.” Id. at 295–96 (citing Colburn v. State, 966 S.W.2d 511,
517 (Tex. Crim. App. 1998)). Thus, a trial court’s ruling on a challenge for cause
may be reversed only for a clear abuse of discretion. Id. at 296. “When a
veniremember’s answers are ambiguous, vacillating, unclear, or contradictory, we
give particular deference to the trial court’s decision.” Id.; Robinson v. State, 989
S.W.2d 456, 458 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (“If a venire
member equivocates on her ability to follow the law, the reviewing court must defer
to the trial court’s judgment.”).
B. Challenges to Prospective Jurors Nos. 7 and 61
During the panel voir dire discussion, the State questioned Juror No. 7 about
witness credibility. The following exchange took place:
Prosecutor: So as a juror, your job is to listen, to keep an open mind. You can believe some, none or all of what someone says, if you listen to them and you believe them beyond a reasonable doubt.
So everyone comes in on the same footage. I know I have my police officer here from Hays County—and you knew I was going to
22 call on you—even though, Juror Number 7 here is a police officer and if he came in here and he had on his gun and his badge and he’s got on his vest and his gear that he puts on every day, just because he has a badge and a gun doesn’t mean he gets more credibility.
Would you agree with that Juror Number 7?
Juror No. 7: Yes.
Prosecutor: Do you think that you can just judge a book by its cover?
Juror No. 7: No, ma’am.
Prosecutor: All right. So when you come in and when officers come in, you have to be able to look at everything, you've got to listen.
You might have good officers, you might have bad officers. Would you agree with me?
Juror No. 7: Yes, ma’am. ....
Prosecutor: Let me ask you, just because I know he’s going to do it, I’m going to get to you first. Because of your experience, your training, you being a police officer, do you still think you could be fair and impartial and sit in a case like this and listen to the evidence—hold on, hold on before you tell me anything—listen to all of the evidence and judge the credibility of each witness keeping an open mind and not rendering a decision until you hear all of it?
Juror No. 7: I do think I could. But I am biased, because like I said, I’ve taken this report, I’ve taken this call, I’ve talked to the victims. I know how in depth the investigations are. So I would be biased.
Prosecutor: Okay. But can you set your bias aside, because your [sic] biased to the offense. You’re not biased to this defendant, are you?
Juror No. 7: No.
23 In the course of both sides making their strikes for cause, defense counsel
asked Juror No. 7 about several of his earlier responses:
Defense Counsel: During Ms. Frazier’s voir dire, during her jury questions, you talked a little bit about having some bias about a case like this because of your work.
Juror No. 7: I think it’s possible, yes, sir.
Defense Counsel: Can you explain that a little bit more?
Juror No. 7: Well, I’m a deputy with the Hays County Sheriff’s Office and I have taken sexual assault reports, sexual assault of a child. Just saying that I have that kind of insight that a normal civilian would not.
Defense Counsel: So if somebody comes and testifies and it’s different from what your personal insight is to these kind of cases, are you going to rely on your personal insights or are you going to rely on what the testimony is in the courtroom?
Juror No. 7: I wouldn’t say that. I was just saying that I have a different perspective, that’s all. So I would rely on the other testimony and evidence presented.
Defense Counsel: Okay. When you say you have a bias on these cases, does your work effect how you’re going to hear the evidence in this case?
Juror No. 7: I think—so you’re talking about credibility, that I might put more weight into, say, an officer or investigator’s testimony than say your average other person might.
Defense Counsel: Why is that?
Juror No. 7: Because of my experience and I know what these guys do, and I don’t think that they are doing anything—I’m not going to say wrong. But they are not misrepresenting anything like that.
24 Defense Counsel: So are you going to treat them with—sort of a starting point, are you going to treat them with more credibility than another witness?
Juror No 7: Yes. That’s kind of what I was trying to say with the whole bias part.
Defense Counsel: Okay. Would you be able to set that aside and treat them equally like any other witness who came in, or is that bias going to affect your ability to hear the case?
Juror No. 7: I can certainly try, but like I said, being a police officer and seeing other police officers knowing what they go through and what they do.
Defense Counsel: So I kind of need a yes or no. Sorry to flip that script back on you.
Juror No. 7: No, no. I understand. I want to say yes, but it might—I’d have to say no just to be on the safe side, because like I said, if I see another officer, I’m going to assume that he’s doing everything by the book and wants what’s best for the victim and justice in general.
Defense Counsel: Pass the witness.
Prosecutor: So are you going to assume or are you going to wait to hear what he’s done and look at his credentials and listen to the evidence before you give that weight?
Juror No. 7: No. Of course, I’m going to listen to everything. I’m just saying I’m going to be—I would start off with believing him more.
Prosecutor: Well, you understand that the law says you can’t do that?
Juror No. 7: Right.
Prosecutor: Okay. And so does that mean, then, at this point, you’re going to—even though the law would be that you cannot do that, you would still do that? You couldn’t set that aside and take them as equal?
25 Juror No. 7: I could do that. I could put it aside and look at them—I don’t think they are lying or anything like that. But I’m trying to be honest.
Prosecutor: No, I agree. And you understand there are good cops and bad cops, right? There’s cops out there that have done wrong?
Juror No. 7: Yes, ma’am.
Prosecutor: Maybe they have handled the scene improperly or maybe they have done something in their personal life that causes them to be on a Brady list or some sort of thing. So not every cop is assumed to be credible just because they are cop [sic]. Would you agree with that?
Juror No. 7: Yes, ma’am. Good point.
Prosecutor: And so when an officer comes in, can you set aside the preconceived notion that you assume they are all good, and listen to the testimony, listen to the credibility and listen to what they did and see if that is sufficient and that is—and then you can give whatever weight you want to their testimony. You can give more, less, none at all, but you have to wait. And that’s the question, can you wait? If you can’t, that’s totally fine.
Juror No. 7: I can. I just want to be completely upfront and honest. I mean, that’s just—
Prosecutor: But your bias isn’t against this defendant?
Juror No. 7: Of course not.
Prosecutor: So your bias is against the crime of sexual assault of a child?
Following the exchange, defense counsel moved to strike Juror No. 7 because
“he stated clearly he’s going to hold some witnesses with more credibility than
26 others before hearing the evidence.” The prosecutor responded that Juror No. 7
stated only that he had a bias against the offenses and not against appellant. She
argued that after Juror No. 7 was provided with an explanation of the law, he
confirmed that he could follow the law. The trial court denied defense counsel’s
challenge for cause to Juror No. 7.
During his portion of voir dire, defense counsel asked the jury panel the
following question:
So the question I’ve got is: Are you going to be able to, given this kind of case, the kind of evidence that we expect to hear, are you going to be able to sit and listen to all the evidence? I’m just going to go through from the beginning, all right?
Juror No. 61 answered “no.”
Later, defense counsel asked Juror No. 61 about her answer to the question:
Defense Counsel: Do you remember during my section of the questions where I was asking about an ability to listen to all the evidence in the case? Do you remember what your answer was?
Juror No. 61: It was no.
Defense Counsel: Can you explain that?
Juror No. 61: Yes. I have one of those minds that relives and rethinks. I can’t watch movies, certain movies. I can’t read books because I just play things over and over in my mind. And I know I would play, whether it’s words or visuals, it doesn’t matter, I would play it over and over in my mind. That would be difficult for me.
Defense Counsel: So I think you answered a couple of different questions that maybe I didn’t ask. So what is—would you be able to listen to all the evidence in a trial like this and not make your mind up 27 after just hearing a portion, but keep your mind open and listen to all the evidence?
Juror No. 61: I could listen to it, but it would be difficult on me physically.
Defense Counsel: Okay. What do you mean by that?
Juror No. 61: I probably wouldn’t sleep at night.
Defense Counsel: All right. So—
Juror No. 61: Depending on what was said.
Defense Counsel: So you would listen to the evidence, but how would that affect your ability to make a decision?
Juror No. 61: It would not affect the way I made a decision; it would affect me personally.
Defense Counsel: All right. Are you able to listen to the evidence in this case?
Juror No. 61: I would do it if I was called. And I would deal with my own physical—I could deal with it for a week.
Following this exchange, defense counsel stated, “I don’t know what to do
with that answer, Judge. I’m going to move to strike for cause.” The trial court
denied the challenge for cause to Juror No. 61.
Prior to the sides exercising their peremptory challenges, defense counsel
requested two additional peremptory challenges “because of the two strikes . . . that
were not granted to the defense. That was [Juror] Number 7 and [Juror] Number 61.”
The trial court denied the request. The jury was seated and sworn.
28 Before the start of testimony the next day, defense counsel advised the trial
court that he had a couple of housekeeping issues:
Number one, I was a little imprecise yesterday at the end of the day because I was tired. When I stated on the record that I did not object to the jury as seated, I was not intending to waive any objections during the strike conferences. I was merely not objecting to the jury as that it reflected the strikes that I actually made, and that none of the people that I struck were seated on the panel.
....
The second issue there is the final step, I believe, which I—because I was tired, that I didn’t take was to identify the people that I would have struck if I had gotten the extra strikes or if the Court had done those.
And this is just as a proffer, not asking—it’s just an issue that I offer as a proffer, is that Jurors 21 and 32 would have been the strikes that I would have made if the—and I had noted those. Those are—and I would tell the Court as an officer of the Court, those were in my notes yesterday as the strikes that I did not make, that I would have made next if I’d had—if those numbers—if the ruling had been different.
C. Preservation of Error
We initially address the State’s contention that appellant waived his claim that
the trial court erred in denying his challenges for cause to Jurors Nos. 7 and 61. To
preserve error for a trial court’s erroneous denial of a challenge for cause, appellant
must show that (1) he asserted a clear and specific challenge for cause; (2) he used
a peremptory challenge on the complained-of venire member; (3) his peremptory
challenges were exhausted; (4) his request for additional strikes was denied; and (5)
an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex.
29 Crim. App. 1996). The defendant must make the proper objection before the panel
is sworn. Credille v. State, 925 S.W.2d 112, 115 (Tex. App.—Houston [14th Dist.]
1996, pet. ref’d).
1. “Clear and Specific Challenge”
After both sides questioned Juror No. 7, defense counsel moved to strike him
on the ground that “he stated clearly he’s going to hold some witnesses with more
credibility than others before hearing the evidence.” The prosecutor responded that
Juror No. 7 stated only that he had a bias against the offenses and not against
appellant, and that after Juror No. 7 was provided with an explanation of the law he
stated that he could follow the law.
The State argues that appellant waived his claim of error because he did not
articulate a clear and specific challenge for cause after the State explained the law
to him. Appellant’s statement that he was moving to strike Juror No. 7 because “he
stated clearly he’s going to hold some witnesses with more credibility than others
before hearing the evidence” was sufficient to preserve his claim of error with
respect to Juror No. 7.
Following questioning of the venire panel, Juror No. 61 was questioned
individually regarding her ability to serve on the jury. After Juror No. 61 was
excused, defense counsel stated, “I don’t know what to do with that answer, Judge.
I’m going to move to strike for cause.” The trial court denied the challenge.
30 The State argues that appellant waived his claim of error with respect to Juror
No. 61 because he did not articulate a clear and specific challenge for cause. We
agree. Defense counsel’s statement that he “[did not] know what to do with [Juror
No 61’s] answer” was not a clear and specific challenge for cause to Juror No. 61.
2. “Objectionable Juror”
The State also argues that although appellant requested two additional
peremptory challenges, he failed to identify in a timely manner which objectionable
jurors sat on the jury because his peremptory challenges were exhausted by
exercising them on Jurors Nos. 7 and 61.
The record reflects that defense counsel only identified the objectionable
jurors—Jurors Nos. 21 and 32—after the jury had been seated and sworn.
Appellant’s objection to the composition of the jury after it was sworn and seated
failed to preserve error. See Credille, 925 S.W.2d at 115 (“[An] objection after the
jury was sworn [i]s not timely . . . Because [the] appellant failed to press the trial
judge to make a specific ruling before the jury was sworn, he failed to preserve
error.”); see also Dimas v. State, No. 14-01-01123-CR, 2002 WL 31769381, at *2
(Tex. App.—Houston [14th Dist.] Dec. 12, 2002, no pet.) (mem. op., not designated
for publication) (“Appellant’s assertions identifying the objectionable jurors, after
the jury panel was sworn in, were not timely; thus, appellant failed to preserve
error.”).
31 D. Trial Court’s Rulings
However, even if appellant had preserved his claim of error, the trial court did
not abuse its discretion in denying appellant’s challenges for cause to Jurors Nos. 7
and 61.
1. Juror No. 7
Appellant argues that Juror No. 7, a deputy with the Comal County Sheriff’s
Office, made it clear that he had a bias in favor of the State. Thus, he argues, the trial
court erred in denying his challenge for cause.
During questioning, Juror No. 7 agreed that a testifying officer is not entitled
to more credibility because he comes in with a gun and badge, and that there are
good and bad officers. He stated that he was biased because of his experience
working these types of cases and has a different perspective than civilians but he
thought he could keep an open mind and not reach a decision until he heard all the
evidence. When asked if he would rely on his personal insights or the testimony at
trial, Juror No. 7 responded that he would rely on the evidence presented at trial.
Juror No. 7 stated that he would initially treat an officer’s testimony with more
credibility than another witness’ testimony. When the prosecutor explained that the
law prohibits him from doing so and asked whether he could set aside his bias and
treat witnesses equally, Juror No. 7 stated that he could.
32 “When the record reflects that a venire member vacillated or equivocated on
his ability to follow the law, the reviewing court must defer to the trial judge.”
Gardner, 306 S.W.3d at 295. “A trial judge’s ruling on a challenge for cause may
be reversed only for a clear abuse of discretion.” Id. at 296. Here, Juror No. 7
vacillated and equivocated on whether he would treat law enforcement witnesses
with “more credibility than another witness.” While Juror No. 7 expressed that he
would initially treat a testifying officer with more credibility than another witness,
after he was provided with an explanation of the law he stated that he would listen
to the evidence before determining the weight to give to the testimony. See Ladd v.
State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999) (stating jurors “are not
challengeable for cause simply because they would give certain classes of witnesses
a slight edge in terms of credibility, because ‘[c]omplete impartiality cannot be
realized as long as human beings are called upon to be jurors.’”) (quoting Jones v.
State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998)); see also Nunez v. State, No.
13-17-00671-CR, 2019 WL 1831715, at *5 (Tex. App.—Corpus Christi-Edinburg
Apr. 25, 2019, pet. ref’d) (mem. op., not designated for publication) (“Juror 12
vacillated on her answers concerning impartiality, but she is not biased as a matter
of law. She stated that she understands the defendant’s right to a fair trial and she
indicated that she would try to be impartial even though she was not completely
certain of her ability to do so. Thus, we will afford great deference in this case to the
33 trial court’s discretion because the trial court was in the best position to evaluate
juror 12’s answers and demeanor”). Affording deference to the trial court’s
discretion, we conclude that it did not abuse its discretion in denying appellant’s
2. Juror No. 61
Appellant argues that the trial court erred in denying his challenge for cause
to Juror No. 61 because she made it clear she had a bias when she stated she would
be physically affected by having to listen to the evidence. Appellant asserts that a
juror who cannot listen to the evidence without having serious physical
consequences or worries about her psychological well-being cannot be fair and
impartial.
In response to a general question to the venire members asking whether they
had the ability to sit and listen to the evidence, Juror No. 61 responded “no.” Defense
counsel later questioned the juror individually about her answer. Juror No. 61 stated
that she has the type of mind that replays things over and over and that hearing the
evidence would physically affect her. When asked whether the physical impact of
listening to the evidence would affect her ability to reach a decision, Juror No. 61
unequivocally responded that it would not affect the way she made a decision and
that it would only affect her personally. When asked whether she could listen to the
34 evidence, she replied that she would if called and could deal with the physical
impact.
To be challengeable, a juror’s bias or prejudice must “substantially impair the
prospective juror’s ability to carry out his oath and instructions in accordance with
the law.” Gardner, 306 S.W.3d at 295. Appellant has not met his burden to establish
that his challenge for cause to Juror No. 61 is proper. See Feldman, 71 S.W.3d 738.
The trial court did not abuse its discretion in denying his challenge for cause to Juror
No. 61.
Appellant’s first issue is overruled.
Conclusion
We affirm the trial court’s judgments.
Amparo Guerra Justice
Panel consists of Chief Justice Adams and Justices Farris and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).