Garrett v. State

693 S.W.3d 490

John Austin GARRETT, Appellant

v.The STATE of Texas, Appellee

NO. 14-22-00328-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed August 10, 2023

Discretionary Review Refused January 24, 2024

On Appeal from the 506th Judicial District Court, Waller County, Texas, Trial Court Cause No. 21-02-17562

Elton Raymond Mathis, Sean G. Whittmore, Sean Whittmore, for Appellee.

Mandy Miller, Katy, for Appellant.

Panel consists of Chief Justice Christopher and Justices Jewell and Spain

OPINION

Kevin Jewell, Justice

A jury convicted appellant John Austin Garrett of the first-degree felony of continuous sexual abuse of a young child,¹ and the trial court sentenced him to life in prison. Appellant contends the evidence is insufficient to support his conviction because the State failed to establish that two or more acts of sexual abuse occurred during a period of thirty or more days in duration. Further, appellant argues that he was denied due process because the trial judge was biased against him.

We overrule his first issue because legally sufficient evidence shows that appellant committed two or more acts of sexual abuse against the complainant during a period of thirty or more days in duration. We overrule his second issue because the trial judge’s post-sentencing comments do not reflect a lack of impartiality, nor does the record otherwise support appellant’s allegation that the trial judge displayed a bias against him.

We affirm the judgment.

Background

Appellant challenges the sufficiency of the evidence only as it relates to proof that two or more acts of sexual abuse occurred during a period of thirty or more days in duration, so we confine our summary of the evidence accordingly.

In July 2017, after appellant and the mother of his children separated, appellant left his home in Arkansas with his three young sons and moved in with his parents in Waller County, Texas. At that time, appellant’s thirteen-year-old niece,² A.G., also lived with appellant’s parents. A.G. described appellant as "like a father" to her; he was someone she could "just talk [to] a lot." She and appellant’s young sons often rode around at night with appellant in his track, but by the end of August 2017, appellant’s sons stopped riding with them. Beginning in October 2017, appellant and A.G. would leave the house after appellant’s parents went to bed and would not return until early in the morning. During these rides, appellant provided A.G. with alcohol, and she would drink until she was intoxicated.

A.G. testified that, in early November 2017, she and appellant were on one of their typical, late-night drives. They were returning from Houston when appellant stopped at a gas station and purchased alcohol and sunglasses. After they left the gas station, A.G. became intoxicated after consuming numerous alcoholic beverages provided to her by appellant. Appellant stopped the track and told A.G. to take off her clothes. She began to comply, but appellant "got impatient, so he started to take them off." Appellant then got on top of A.G. and placed his penis in her vagina for "five to ten minutes." A.G. was crying during the entire incident. When she began "hyperventilating," appellant told her to "shut up." After they returned home, appellant told A.G. that if she said anything about what had happened, he would kill her grandmother—his mother—and showed A.G. a handgun.

A.G. described a second incident that occurred the week before Thanksgiving 2017.³ She and appellant were driving around for a couple hours, and A.G. again drank numerous alcoholic beverages provided by appellant. They stopped in a rural area, and appellant instructed A.G. to take off her clothes. Appellant sexually assaulted A.G. by penetrating her vagina with his penis for about five minutes. After this assault, A.G. told appellant that she planned to tell her grandmother. Appellant slapped A.G. and, when she began crying, he warned her again that he would kill her grandmother if she said anything about the abuse.

A.G. described a third incident that happened "at the beginning of December," which again took place at night in appellant’s truck. She recalled having around four alcoholic beverages but stated that she felt "more intoxicated" than any other time. A.G. was unable to describe where they drove or exactly what occurred, saying her memory was "very blurry from the third time," but she recalled appellant "climbing off of [her], telling [her] to get dressed." A.G. testified that this third incident occurred before she went to Florida to join her mother for the 2017 Christmas holidays. A.G. testified that she thought she went to Florida the "the week of Christmas," While A.G. was in Florida, she threatened to kill herself; she described herself as "living in fear" because she was concerned for her grandmother’s life. After A.G. made this threat, her mother called the police. A.G. was evaluated at a hospital in Florida, and she stated she spent Christmas Eve, Christmas Day, and the next two days hospitalized. She returned to Texas in mid-January 2018, after spending her fourteenth birthday on January 9, 2018 with her mother and stepfather in Florida.⁴

A jury convicted appellant of continuous sexual abuse of a child under fourteen. After a presentence investigation and punishment hearing, the trial court sentenced appellant to confinement for life in the Texas Department of Criminal Justice, Institutional Division.

Appellant timely appealed.

Analysis

A. Sufficiency of the Evidence

In his first issue, appellant contends the evidence is insufficient to support his conviction because the State failed to establish that two or more acts of sexual abuse, as set forth in the indictment, occurred during a period of thirty or more days in duration.

1. Standard of review and applicable law

[1–3] In determining whether the evidence is legally sufficient to support a conviction, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We presume that the jury resolved conflicting inferences in favor of the verdict, and we defer to its determination of the evidentiary weight and witness credibility. See Braughton, 569 S.W.3d at 608; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). "The complainant’s testimony, standing alone, is sufficient to support [a] conviction for continuous sexual abuse of a young child." Gutierrez v. State, 585 S.W.3d 599, 607 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

[4–7] We consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). 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. See Hooper, 214 S.W.3d at 13. A jury may draw reasonable inferences from the evidence but may not come to conclusions based on mere speculation. Witcher v. State, 638 S.W.3d 707, 710 (Tex. Crim. App. 2022). A jury may draw multiple reasonable inferences from facts, so long as each is supported by the evidence presented a trial. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

[8] A person commits the offense of continuous sexual abuse of a child if the person commits two or more acts of sexual abuse against a child under fourteen during a period that is thirty or more days in duration, when the person is at least seventeen years of age at the time each act of abuse is committed. See Tex. Penal Code § 21.02(b); Pelcastre v. State, 654 S.W.3d 579, 584 (Tex. App.—Houston [14th Dist.] 2022, pet. ref’d).

2. Legally sufficient evidence supports the jury's verdict.

[9] Appellant does not contest the sufficiency of the evidence as to the first and second acts of sexual abuse described above.⁵ Nor does he dispute that, during the relevant time period, he was "17 years of age or older and the victim [was] a child younger than 14 years of age." See Tex. Penal Code § 21.02(b)(1), (2). His appellate argument focuses on the third incident. According to appellant, the State failed to present legally sufficient evidence establishing that an act of sexual abuse occurred during the third incident, and further, assuming the third incident constituted an act of sexual abuse, there is no evidence that the first and third incidents occurred more than twenty-nine days apart.

A.G. could not recall the details of the December 2017 incident. She said that her memory was "very blurry from the third time." Appellant provided her with several alcoholic beverages before the incident and she felt much more intoxicated than the previous incidents. Although she did not specifically recall the actual act, she remembered appellant "climbing off" her and telling her to get dressed. Appellant contends that there was "no evidence regarding what state of undress A.G. or appellant were in or any other circumstantial evidence to indicate that sexual contact or penetration occurred."

The jury was not considering A.G.’s testimony in a vacuum. The evidence related to the previous two incidents may inform the jury’s consideration of the third incident. See Hooper, 214 S.W.3d at 13 (explaining that, in reviewing legal sufficiency, we should look at "events occurring before, during and after the commission of the offense," including the defendant’s actions). As explained, A.G. detailed the first two incidents of sexual abuse, and in each of those incidents, appellant plied A.G. with alcohol,...