Kirsch v. State, No. 2-06-031-CR (Tex. App. 3/8/2007)

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Unpublished Opinion

KENNETH KIRSCH, Appellant, v. THE STATE OF TEXAS, State.

No. 2-06-031-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 8, 2007.

Do Not Publish. Tex.R.App.P. 47.2(b).

Appeal from Criminal District Court No. 4 of Tarrant County.

Panel A: CAYCE, C.J.; WALKER and McCOY, JJ.

MEMORANDUM OPINION¹

SUE WALKER, Justice.

I. INTRODUCTION

Appellant Kenneth Kirsch appeals his convictions for aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure. The trial court sentenced Kirsch on each of the three offenses to confinement for forty-five years, thirty years, and thirty years, respectively. In three points, Kirsch argues that the evidence is legally and factually insufficient to support the verdict, that the trial court erred by allowing the State to convict him twice for the same offense, and that the trial court erred by not granting a mistrial when extraneous offense evidence came before the jury. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Michael and Christy, who were never married, are the parents of A.L. A.L. was born on July 5, 1997. In 2000, Christy married Kirsch. In January 2003, Michael—A.L.'s father—drove from Nebraska to pick up A.L. because Christy was in the hospital. During the drive back to Nebraska, A.L. talked about Kirsch and referred to him as "Bubba." Michael referred to the fact that Bubba was gone, and A.L. said, "I hope he stays there until his skins fall off his bones." After some encouragement, A.L. told her dad that she had walked by a room and had seen Kirsch masturbating.² A.L. described other incidents, including that Kirsch forced her to watch porn movies; that he put Jello on her crotch area; that he got on top of her and made "motions on her body"; that he put tape on her hands and feet, put two ice cubes in her mouth, put duct tape on her mouth, put her in the bathtub after her clothes were off, and urinated on her; that he put his penis in her mouth and went to the bathroom in her mouth; and that he would make her do some of the activities depicted in the porn videos. Michael pulled over and called the police and his wife. The next day, he gave a written statement at the Omaha Child's Protection Unit.

Ultimately, a grand jury indicted Kirsch in an eight-count indictment. After a trial, the jury found Kirsch guilty of three offenses—aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure—and the trial court sentenced Kirsch to confinement for forty-five years, thirty years, and thirty years, respectively. This appeal followed.

III. LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE

In his first point, Kirsch argues that the evidence is legally and factually insufficient to support the verdict. Specifically, Kirsch contends that the State failed to prove that any of the sexual acts were performed with the intent to arouse him or that A.L. had been sexually assaulted.

A. Legal Sufficiency Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order 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, 2789 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Bowden v. State, 166 S.W.3d 466, 470 (Tex. App.-Fort Worth 2005, pet. ref'd). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the charging instrument. See Curry, 30 S.W.3d at 404.

B. Factual Sufficiency Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradict the verdict. Watson, 204 S.W.3d 417.

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the fact-finder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.

An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Moreover, an opinion reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

C. Analysis of Evidence to Support Convictions

1. Identity

Kirsch claims that the evidence failed to show that he was the person who committed the offenses. He contends that Christy had other boyfriends who lived with her and A.L. and that the perpetrator could have been one of these individuals.³

It is true that when A.L. testified at the trial in 2006, she stated that the man in the courtroom who had been identified as Kirsch did not "look very familiar at all" and explained that his face and his hair were different. However, when Christy's father testified, he explained that Kirsch looked different than he had looked in 1999 and 2000 because he had gained fifty or sixty pounds, his hair was darker, and he was older. Although one of the witnesses testified that Christy had been fondled by someone named Dayson, at no time during A.L.'s testimony did she waver from her allegations that Kirsch, also known to her as "Bubba," was the person who had committed the acts against her.

Giving due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence," we hold that the jury did not err by finding that Kirsch was the person who perpetrated the alleged acts upon A.L. Johnson, 23 S.W.3d at 9; see also Wheeler v. State, Nos. 05-96-00407-CR, 05-96-00408-CR, 1998 WL 224858, at *2 (Tex. App.-Dallas May 7, 1998, no pet.) (not designated for publication) (stating that appellate court must defer to jury's finding on credibility and holding that evidence was factually sufficient to establish appellant's identity as the perpetrator of aggravated assault and aggravated sexual assault).

2. Aggravated Sexual Assault

To convict Kirsch of aggravated sexual assault as alleged in the indictment, the State was required to prove that Kirsch intentionally or knowingly caused A.L.'s mouth to contact his sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (Vernon 2006). Kirsch argues that the evidence is insufficient to show that he did anything sexual to A.L.

The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07...