Swisher v. State

BRYAN LACY SWISHER, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-19-00285-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

December 30, 2020

From the 19th District Court McLennan County, Texas

Trial Court No. 2016-774-C1

MEMORANDUM OPINION

On September 9, 2020, this Court issued a memorandum opinion affirming appellant Bryan Lacy Swisher's convictions for continuous sexual abuse of a young child and indecency with a child by contact. See generally Swisher v. State, No. 10-19-00285-CR, 2020 Tex. App. LEXIS 7330 (Tex. App.—Waco Sept. 9, 2020, no pet. h.) (mem. op., not designated for publication). On September 23, 2020, Swisher filed a motion for rehearing, and we requested a response to that motion. After reviewing the motion for rehearing and response thereto, we grant the motion for rehearing. We withdraw our memorandum opinion and judgment issued on September 9, 2020, and substitute the following in their place.

In three issues, appellant, Bryan Lacy Swisher, challenges his convictions for continuous sexual abuse of a young child and indecency with a child by contact. See TEX. PENAL CODE ANN. §§ 21.02, 21.11. We affirm as modified.

I. SUFFICIENCY OF THE EVIDENCE

In his first issue, Swisher argues that the evidence is legally and factually insufficient to prove identity. Swisher emphasizes that the child victim failed to sufficiently identify Swisher in open court as the assailant and that neither the child victim's mother nor another relative who alleged that Swisher sexually assaulted her sufficiently identified Swisher in the courtroom as the person they were testifying about.

At the outset, we address Swisher's contention that the evidence is factually insufficient to prove identity. The Court of Criminal Appeals has determined that factual sufficiency no longer applies in criminal cases. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010) (plurality op.) (concluding that there is "no meaningful distinction between the Jackson v. Virginia legal sufficiency standard and the . . . factual-sufficiency standard, and these two standards have become indistinguishable" and holding the following: "As the Court with final appellate jurisdiction in this State, we decide that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are overruled."); see also Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Kiffe v. State, 361 S.W.3d 104, 109-110 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (rejecting a constitutional challenge to the single sufficiency standard in criminal cases under the factual-conclusivity clause and stating that, "[a]lthough an intermediate appellate court's decision shall be conclusive on all questions of fact brought before them on appeal or error, the Texas Court of Criminal Appeals has authority to determine questions of law, including the standard of review that an intermediate appellate court must use in conducting factual review." (internal citations omitted)). Therefore, because we are bound to follow the Court of Criminal Appeals, we only apply the Jackson sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense. See Brooks, 323 S.W.3d at 902, 912; see also Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). Accordingly, we are not persuaded to consider this argument in this proceeding.

We now move on to Swisher's contention that the evidence supporting the identity element is legally insufficient. Our standard of review is as follows:

When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, 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, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly 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. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "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). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

In the instant case, Swisher challenges the identity element. The State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Rice v. State, 901 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref'd)). Identity may be proven by direct or circumstantial evidence. Id. (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth 1999, pet. ref'd); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986, no pet.)). "In fact, identity may be proven by inferences." Id. (citing United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, pet. ref'd) (explaining that the jury may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs of life when giving effect to an inference that may reasonably by drawn from the evidence).

In the instant case, Swisher was charged by indictment with continuous sexual abuse of a young child, H.H., and indecency with a child by contact. At trial, H.H., who was thirteen years old at the time of trial, recounted that the sexual abuse occurred every day when she went to Swisher's house when she was five or six years old. H.H. identified Swisher in open court as the defendant in this case, but she did not specifically identify him as the perpetrator of charged offenses. She also recalled that the sexual abuse involved taking off her pants, sticking his hand in her crotch area, wiggling his fingers, and touching her breasts and occurred in Swisher and his wife's bedroom. According to H.H., this happened "[t]oo many [times] to count."

The State also presented the testimony of H.H.'s pediatric Nurse Practitioner Katie Carranza, who noted that H.H. is very mature and well-spoken for her age and that H.H. told her that "she had been touched inappropriately, and then she said that it was her step-grandfather." H.H. told Nurse Carranza that H.H.'s step-grandfather had touched her private parts for years.

Additionally, H.H.'s mother identified Swisher as her "mom's husband"—or, in other words, her step-father. C.E., H.H.'s sister, identified Swisher as "Bryan," her "step-grandpa," and stated that, on several occasions, Swisher touched her "no-no square" and moved his fingers while the two were in Swisher's bedroom.

And finally, Dr. Soo Battle, a child-sexual-abuse examiner and Medical Advisor at the Advocacy Center for Crime Victims and Children, testified that she conducted a medical exam of H.H., and during the exam, H.H. noted that: "My granddad, Bryan Swisher, he molested me." H.H. informed Dr. Battle that Swisher is her "mom's stepdad" and that he touched her breasts and "no-no" spot with his hands and that his hand were moving when the touching occurred. This happened "more times that [she] can count" over the course of two...