Lewis v. State

693 S.W.3d 453

Marc Alexander LEWIS, Appellant

v.The STATE of Texas, Appellee

NO. 14-21-00691-CR

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

Opinions filed August 1, 2023

Discretionary Review Refused December 6, 2023

On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 1640910

Kim K. Ogg, Houston, Jessica Alane Caird, John David Crump, for Appellee.

Brittany Lacayo, Houston, for Appellant.

Panel consists of Chief Justice Christopher and Justices Jewell and Spain.

OPINION

Kevin Jewell, Justice

A jury convicted appellant Marc Alexander Lewis of the first-degree felony of continuous sexual abuse of a young child. Tex. Penal Code § 21.02(b), (h). In seven issues, appellant contends the jury charge was erroneous, the trial court erred in admitting or excluding certain evidence including outcry testimony, appellant’s trial counsel provided ineffective assistance, and the cumulative effect of the asserted errors denied him due process and a fair trial.

Concluding that his issues lack merit, we affirm.

Background

Appellant is the stepfather of the complainant, whom we refer to as Fiona.¹ Fiona’s mother ("Mother") and appellant met when Fiona was two years old and Fiona’s sister, Diane, was four years old. Mother had four additional children with appellant.

In May 2019, when Fiona was thirteen years old, she told Mother that appellant had vaginally and orally raped her, According to Mother, Fiona said the abuse began three years prior to the outcry and stopped three months before the outcry. Mother testified that Fiona said the abuse occurred in the house, in Mother’s and appellant’s bedroom, and in the car.

Fiona, sixteen years old at the time of trial, testified about the abuse. She recalled the first time appellant touched her inappropriately. Fiona was alone in the living room and appellant sat next to her and "started to push himself against" her chest. Appellant made Fiona take her shirt off and he removed his shirt. He began "messing with" her chest and put her hand on his penis under his shorts. Appellant used his hands to move her hand on his penis. Eventually, appellant leaned against Fiona, which felt like "he was adjusting his hips on [her.]"²

Fiona also recalled a time when she went into appellant’s bedroom, where he pushed her onto the bed. Appellant forced her to perform oral sex on him. This form of sexual abuse occurred "[a] couple of times … every once in a while," both at home and in appellant’s vehicle.

When Fiona was in eighth grade, appellant called her into his bedroom, where he was sitting on the bed. Appellant closed the door, "threw [Fiona] on the bed," and began to undress her. He pushed his penis into her vagina, and she felt "[p]ain." Appellant vaginally raped Fiona "[e]very once in a while" and anally raped her once. Appellant told Fiona not to tell anyone what happened.

Fiona said she told Mother about the abuse after Mother asked "why [Fiona] changed, why [Fiona was] acting different and weird." Fiona did not report the abuse earlier because appellant threatened to hurt Fiona and anyone who found out. Fiona and Mother testified that as Fiona matured through middle school, appellant became more aggressive, mad, and verbally abusive.

Diane, Fiona’s older sister, corroborated several aspects of Fiona’s account. She testified that Fiona and appellant would spend time alone together. Appellant would ask Fiona to give him a massage, and they would go into his bedroom together with the door closed and locked. They would be in there for "about an hour to 30 minutes." Diane sometimes saw Fiona resisting going to the bedroom, but appellant was "persistent." Diane never heard Fiona crying or yelling or saying no.

Diane also testified about instances when appellant asked Diane to give him massages. Diane described straddling appellant and giving him a massage, while he rocked against her body. She could feel "a bulge" against her crotch. Diane told him that she was uncomfortable and, "[a]fter two or three times, he let [her] get off." This occurred when Diane was fifteen to seventeen years old.

The day after Fiona first told Mother about appellant’s acts, Mother took her to the closest hospital, where Fiona reported sexual abuse. Nurse Harmony Pitman evaluated Fiona in the emergency room. Pitman testified that the reason for Fiona’s visit was "[s]exual assault of a pediatric and abdominal pain." Pitman also said that Fiona’s demeanor was "[a]pprehensive, head down, not really forthcoming with answers, which is expected, which is typical for this complaint." But Fiona was more forthcoming after Mother left the room for the second half of the interview. After the interview, Pitman contacted child protective services ("CPS") and the Pasadena Police Department ("PPD"). PPD Officer Robert Barrionuevo was dispatched to the hospital, where he spoke with Fiona and Mother. The prosecutor asked Officer Barrionuevo if Fiona made "a disclosure of sexual abuse," but the court sustained appellant’s hearsay objection and the officer did not answer.

The State offered as exhibit 3 medical records from Fiona’s hospital visit. Appellant objected to "some discharge instructions that have a lot of hearsay, some information about sexual abuse." The State agreed to redact the exhibit to remove pages 36 through 40, and the court admitted exhibit 3 as redacted.

Officer Barrionuevo referred the case to PPD’s detective division, and Detective Oscar Ibarra was assigned to investigate the allegation of sexual abuse. After reviewing Officer Barrionuevo’s report, Detective Ibarra notified the Children’s Assessment Center ("CAC") to schedule a forensic interview and medical exam.³ Detective Ibarra took a statement from Fiona, who identified appellant as the person who sexually abused her. Detective Ibarra reviewed all the other statements made during the investigation. The prosecutor asked if he found those statements to be consistent, to which the officer answered, "Yes." Appellant objected on hearsay grounds, which the trial court overruled.

CPS Investigator Danitra Fields-Frazier was assigned to investigate the sexual abuse allegation. Without detailing what was said, Fields-Frazier acknowledged that Fiona made a disclosure of sexual abuse.

Lisa Bourgoyne, the CAC’s program director, testified regarding Fiona’s interview at the CAC. Fiona disclosed to her interviewer that she had been sexually abused. The prosecutor asked if Fiona was able to give details, to which Bourgoyne answered, "Yes." Appellant objected on hearsay grounds. The trial court sustained the objection and instructed the jury to disregard Bourgoyne’s answer. At a bench conference, the judge told counsel that she was not going to allow witnesses other than Mother to offer details beyond whether Fiona made a disclosure. Bourgoyne did not testify regarding the specifics of what Fiona stated during the interview.

CAC physician, Dr. Reena Isaac, performed Fiona’s medical evaluation. Dr. Isaac testified that, according to Fiona, appellant touched her chest under her clothes with his hands; appellant touched her buttocks under her clothes "with his hand and his part"; and appellant touched her genitals under her clothes with his hand and "his part." Fiona reported penile-anal and penile-genital penetration. Fiona reported pain, but she was unsure if there had been bleeding. Fiona also reported "that she was made to touch his private part with both her hand and mouth." When asked how many times she had been touched inappropriately, Fiona said "A lot."

Dr. Isaac testified that most often in instances of child sexual abuse, the child does not disclose the abuse right after it happens but rather "it’s delayed." Fiona told Dr. Isaac that the reason she had not disclosed the abuse before was because appellant threatened her and she was scared.

Dr. Whitney Crowson, a staff psychologist at the CAC, did not interview Fiona but reviewed her forensic interview and other records. Dr. Crowson testified generally about forensic interviews, delayed outcries, and the psychological impacts of sexual abuse. Dr. Crowson testified, without explaining specific acts, that Fiona disclosed sexual abuse in her forensic interview.

Appellant called two brothers who dated Fiona at different times while teenagers. We refer to the brothers as John and Paul. It was their opinion that Fiona was not a truthful person. Fiona’s cousin and aunt also offered opinion testimony that Fiona was not a truthful person.

The indictment alleged that appellant,

… on or about October 9, 2016 continuing through May 15, 2019, did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of sexual abuse against a child younger than fourteen years of age, including an act constituting the offense of aggravated sexual assault of a child, committed against F.B. on or about October 9, 2016, and an act constituting the offense of aggravated sexual assault of a child, committed against F.B. on or about May 15, 2019, and the Defendant was at least seventeen years of age at the time of the commission of each of those acts.

The jury found appellant guilty as charged in the indictment and assessed appellant's punishment at forty years’ confinement with the Texas Department of Criminal Justice, Institutional Division and a $100 fine. The trial court signed a judgment in accordance with the jury’s verdict, and appellant timely appealed.

Analysis

A. Jury Charge Issue

[1] For the offense of continuous sexual abuse of a young child, the Penal Code requires the jury to agree unanimously that two or more acts of sexual abuse occurred during a period that is thirty or more days in duration. Tex. Penal Code § 21.02(b). In his first issue, appellant argues that the jury charge erroneously allowed the jury to convict him regardless whether the predicate acts occurred at least thirty days apart.

1. Standard of review

[2] We evaluate complaints of...