Hodge v. State

500 S.W.3d 612

Grady Leroy Hodge, Appellant

v.The State of Texas, Appellee

NO. 03-15-00418-CR

NO. 03-15-00419-CR

Court of Appeals of Texas, Austin.

Filed: August 4, 2016

Angela Moore, San Antonio, TX, for Appellant.

Gary W. Bunyard, Assistant District Attorney, Llano, TX, for Appellee.

Before Justices Puryear, Pemberton, and Field

OPINION

David Puryear, Justice

In cause number 41288, Grady Leroy Hodge was charged with twelve counts of aggravated sexual assault of a child who was under the age of fourteen and with three counts of indecency with a child by contact, and in cause number 41289, Hodge was charged with four counts of aggravated sexual assault of a child who was under the age of fourteen and with three counts of indecency with a child by contact.¹ See Tex. Penal Code §§ 21.11(a)(1), (d) (providing that person commits offense of indecency with child if person “engages in sexual contact with the child or causes the child to engage in sexual contact” and specifying that offense is second-degree felony), 22.021(a), (e) (stating, among other things, that person commits offense if victim is under age of fourteen at time of offense and if person “intentionally or knowingly” penetrates anus, mouth, or sexual organ of child or causes sexual organ of child to contact sexual organ or mouth of person and explaining that offense is first-degree felony). The offenses were alleged to have occurred in 2005 and 2006. The victims were Hodge's daughters A.H. and B.H.² During the time relevant to this appeal, B.H. was between six and eight years old, and A.H. was between eleven and thirteen years old. After being charged with the offenses, Hodge moved to sever the two causes. See id. § 3.04 (outlining circumstances in which defendant may obtain severance). The district court denied that request, and the two causes were tried together before a jury. At the end of the guilt-or-innocence phase of the trial, the jury found Hodge guilty on all of the counts in both causes. At the conclusion of the punishment phase of the trial, the jury recommended that Hodge be sentenced to 99 years' imprisonment for each count of aggravated sexual assault and to 20 years' imprisonment for each count of indecency with a child, see id. §§ 12.32 (setting out permissible punishment range for first-degree felony), .33 (listing available punishments for second-degree felony), and the district court entered its judgments of conviction in accordance with the jury's verdicts. In two issues on appeal, Hodge contends that the district court erred by failing to grant his motion to sever and by failing to provide a unanimity instruction in the jury charge. We will affirm the district court's judgments of conviction.

BACKGROUND

As set out above, Hodge was charged with multiple counts of aggravated sexual assault and indecency with a child in two separate causes. The indictments alleged that all of the offenses occurred in Burnet County and further alleged, as follows, that Hodge intentionally or knowingly:

Cause number 41288

Aggravated Sexual Assault

Count 1: penetrated A.H.'s anus with his sexual organ on or about July 1, 2005.

Count 2: penetrated A.H.'s mouth with his sexual organ on or about October 1, 2005.

Count 3: penetrated A.H.'s sexual organ with his finger on or about October 1, 2005.

Count 4: caused A.H.'s sexual organ to contact his mouth on or about June 1, 2006.

Count 5: caused A.H.'s sexual organ to contact his mouth on or about June 1, 2006.

Count 6: penetrated A.H.'s sexual organ with his finger on or about June 1, 2006.

Count 7: caused A.H.'s sexual organ to contact his sexual organ on or about June 30, 2006.

Count 8: caused A.H.'s sexual organ to contact his mouth on or about June 30th, 2006.

Count 9: penetrated A.H.'s sexual organ with his finger on or about June 30, 2006.

Count 10: caused A.H.'s sexual organ to contact his sexual organ on or about July 30, 2006.

Count 11: caused A.H.'s sexual organ to contact his mouth on or about July 30, 2006.

Count 12: penetrated A.H.'s sexual organ with his finger on or about July 30, 2006.

Indecency With a ChildCount 13: caused A.H. to touch the genitals or breasts of B.H. on or about June 1, 2006, with the intent to arouse or gratify his sexual desire.

Count 14: caused A.H. to touch the genitals or breasts of B.H. on or about June 30, 2006, with the intent to arouse or gratify his sexual desire.

Count 15: caused A.H. to touch the genitals or breasts of B.H. on or about July 30, 2006, with the intent to arouse or gratify his sexual desire.

Cause 41289

Aggravated Sexual Assault

Count 1: penetrated B.H.'s anus with his sexual organ on or about July 1, 2005.

Count 3: penetrated B.H.'s sexual organ with his finger on or about June 1, 2006.

Count 5: penetrated B.H.'s sexual organ with his finger on or about June 30, 2006.

Count 7: penetrated B.H.'s sexual organ with his finger on or about July 30, 2006.

Indecency With a Child

Count 8: caused B.H. to touch the genitals or breasts of A.H. with the intent to arouse or gratify his sexual desire on or about June 1, 2006.

Count 9: caused B.H. to touch the genitals or breasts of A.H. with the intent to arouse or gratify his sexual desire on or about June 30, 2006.

Count 10: caused B.H. to touch the genitals or breasts of A.H. with the intent to arouse or gratify his sexual desire on or about July 30, 2006.

During the time relevant to this appeal, Hodge lived in Lampasas County with his wife and his two daughters. Hodge's wife, Donna Hodge, is the biological mother of B.H. but not A.H. Although there was testimony alleging that Hodge committed offenses at his home, the offenses listed above all allegedly occurred in Burnet County at Hodge's place of employment, Lindsey Materials, when Hodge would take his daughters, either separately or together, to the business on the weekends or other times when the business was closed. According to the testimony from his daughters, there were several places on the property that Hodge would take them to, and they referred to the various areas by different names. A.H. referred to the whole general area as the quarry and referred to two particular spots as the swimming hole and the tunnel. In contrast, B.H. referred to what A.H. called the swimming hole as the quarry and referred to what A.H. called the tunnel as the manhole. For ease of reading we will refer to the quarry when discussing the area generally and will refer to the two particular spots as the tunnel and the swimming hole.

In her testimony, A.H. related that she went to live with Hodge, her sister B.H., and Donna in May 2005 and that she moved out in May 2007. When discussing the offenses that allegedly occurred at Lindsey Materials, she related that Hodge started taking her to his workplace on weekends when no one was there and that the misconduct occurred in 2005 and 2006.³ Regarding one event that occurred at the tunnel, she explained that he placed her on a conveyor belt, pulled her pants down, forced her to get on her knees, shoved her head against a machine, “put his penis in my butt,” and proceeded to have anal intercourse with her. In her testimony, she confirmed that Hodge's penis went inside her anus and that this was the only time that Hodge anally penetrated her.⁴ Further, she related that on other occasions at the tunnel Hodge groped her breasts and touched her buttocks.

After discussing events occurring at the tunnel, A.H. recalled that on other days, Hodge would take her to his work; tell her that he was going to teach her to drive some of the equipment there; pull down her pants; lift her shirt; use his fingers to touch her vagina, breasts, and buttocks; and penetrate her vagina with his fingers. Regarding the penetration of her vagina, A.H. stated that it happened on more than three occasions, but she did not provide any particular details regarding the other occasions other than to state that he repeated that behavior.

Next, she testified that on more than ten occasions, Hodge abused her at the swimming hole. Specifically, she stated that he would tell her that they were going to go swimming and tell her to take her clothes off and that after she took her clothes off, he would start licking her vagina. When describing how many times his mouth touched her vagina, A.H. stated that it happened more than five times but did not provide any distinguishing details regarding those other times. Furthermore, A.H. testified that on at least two occasions while she was in the water, he would take off his clothes and place “his penis between my butt” and touch her “vagina with his penis.”

Then, A.H. explained that in another building on the property where Hodge worked, he inserted his fingers into her vagina, groped her breasts, and forced her to perform oral sex on him after putting his penis into her mouth.

Finally, in addition to describing the conduct that occurred between her and Hodge, A.H. also recalled that Hodge would sometimes take her and B.H. to the swimming hole and would make the two girls “kiss each other” by pushing their heads together and would make the two girls touch each other's vagina and breasts. In her testimony, A.H. confirmed that she was forced to touch B.H.'s vagina and that B.H. was forced to touch A.H.'s vagina. When describing these incidents, she said that it occurred more than three times, but she did not provide any distinguishing details regarding the additional instances.

After A.H. finished her testimony, B.H. was called to the stand. During her testimony, B.H. recalled that Hodge would take her and her sister to Lindsey Materials on the weekends when the business was closed and would inappropriately touch them at various spots on the property. In her testimony, B.H. recalled that one time when they were at the tunnel,⁵ Hodge attempted to penetrate her anus with his penis. In discussing this incident, she explained that she was not “sure if it went in” but that she felt “pressure and it really hurt” and testified that she thought it occurred in the summer...