Tucker v. State

1

Michael Tucker, Appellant v. The State of Texas, Appellee

No. 03-22-00697-CR

Court of Appeals of Texas, Third District, Austin

April 25, 2024

FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-DC-21-904045, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Baker, Triana, Kelly, and Smith Justice Theofanis not participating

ON RECONSIDERATION EN BANC

OPINION

Chari L. Kelly, Justice

This Court sitting en banc has voted to reconsider this case^[1] to establish this Court's precedent about whether subsection (f)(1) of Penal Code section 22.021 (Subsection (f)(1)) defines an element of an offense of aggravated sexual assault. We thus also are deciding whether a trial court's felony judgment that lacks a reference in the judgment's "Statute for Offense" section to Subsection (f)(1) must be modified to include such a reference when a defendant has been sentenced in accordance with Subsection (f)(1)'s prescribed minimum sentence. We withdraw our opinion and judgment of October 5, 2023, and substitute today's opinion and judgment in their place. Our disposition of the appeal remains the same, and we dismiss the State's motion for rehearing as moot.

Appellant^[2] was convicted after a bench trial for the second-degree felony of indecency with a child by sexual contact, see Tex. Penal Code § 21.11(a)(1), (d), which was Count IV in the indictment, as well as other offenses involving the same child victim including Count I for aggravated sexual assault, see id. § 22.021. The trial court assessed punishment at 15 years in prison for Count IV and 25 years for Count I. In a sole appellate issue, Tucker maintains that the evidence was insufficient to support the elements of the offense for Count IV that Tucker "caused [the child victim] to touch appellant's sexual organ" and that Tucker "acted with the intent to arouse and gratify her own sexual desire." Separately, the State requests that we modify the judgment for Count I to add in its "Statute for Offense" field a reference to Subsection (f)(1). We reject both sides' positions and affirm.

BACKGROUND

Tucker used to manage a group home where several people or families would rent individual rooms. Tucker would collect the rent for the homeowner. Tucker's bedroom was upstairs in the home, and Leslie Cunningham once rented another upstairs room. She stayed there with her five-year-old daughter, A.R.

A.R told her mother about concerning things that Tucker had done to the child, so Cunningham called the police. An investigation ensued, A.R. went through a forensic interview, and Tucker was twice interviewed by a detective. Daisy Sycks, another tenant in the group home, had a minor daughter who also made outcries against Tucker. Tucker was ultimately indicted for several sex offenses, variously involving A.R. and Sycks's daughter.^[3] Count I against Tucker was for aggravated sexual assault involving A.R., and Count IV was for indecency with A.R. by sexual contact. There were other counts involving A.R. that we need not mention further. After a bench trial, the court convicted Tucker of Count I and Count IV and entered separate written judgments on those two counts. Tucker now appeals, challenging only the judgment for Count IV. The State's request for judgment modification concerns only the judgment for Count I.

EVIDENCE SUFFICIENCY

Tucker argues in her sole appellate issue that the evidence was insufficient to support the elements of the offense that she "caused A.R. to touch appellant's sexual organ" and that she "acted with the intent to arouse and gratify her own sexual desire." The standards for evidence-sufficiency reviews after bench trials are generally the same as those for evidence-sufficiency reviews after jury trials. See Robinson v. State, 466 S.W.3d 166 172-73 (Tex. Crim. App. 2015). In such a review, we must consider all the evidence in the light most favorable to the State, which requires resolving any ambiguities in the evidence in the State's favor. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 634 S.W.3d 745, 748 (Tex. Crim. App. 2021); Hernandez v. State, 556 S.W.3d 308, 315 (Tex. Crim. App. 2017). And we must consider the combined and cumulative force of all admitted evidence and the reasonable inferences that can be drawn from any or all of the evidence. See Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017).

We presume that the factfinder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences all in a manner that supports the conviction. See Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The factfinder is the sole judge of the weight and credibility of the evidence and could have believed some, all, or none of any given witness's testimony. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.-Austin 2013, pet. ref'd). We must defer to the factfinder on all these determinations. See Zuniga, 551 S.W.3d at 733; Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Schneider, 440 S.W.3d at 841. The factfinder also "may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence." Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). If any rational factfinder could have drawn the inferences necessary to support proof of an element, then the State has carried its burden on that element. See Brooks, 634 S.W.3d at 748. As for those elements here, to have proven Tucker's offense of indecency with A.R. by sexual contact as alleged in the indictment, the State must have proven that Tucker caused A.R. to touch Tucker's sexual organ and that Tucker did so with the intent to arouse or gratify Tucker's own sexual desire. See Tex. Penal Code § 21.11(a)(1), (c)(2).

First, the evidence supports the element that Tucker caused A.R. to touch Tucker's penis. In her interviews with detectives, Tucker admitted to an incident that involved Tucker's penis's going in A.R.'s mouth. Tucker described the incident during the later interview with the detective: Tucker had just masturbated in her bed; A.R. knocked on her mother's bedroom's door; Tucker woke up; A.R. went in Tucker's room, went to where Tucker was on her bed, and asked to get under the covers; Tucker let A.R. under the covers and felt something wet on her penis, which was A.R.'s mouth; and Tucker never told Cunningham that this had happened.

Tucker's explanation for the incident was that the five-year-old child had "raped" her. But the trial court as factfinder was permitted to use its common sense to reject Tucker's explanation for why A.R.'s mouth had touched Tucker's sexual organ, see Acosta, 429 S.W.3d at 625, and could rationally infer instead that it had to have been the large adult, who is about 6′5″ or 6′6″ tall, who caused the young child to do what the child did. Plus, Tucker's admission that she did not tell the child's mother about what had happened supports a rational inference of consciousness of guilt, which is highly probative evidence of guilt, see Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.-Austin 1990, no pet.). There was other evidence of Tucker's consciousness of guilt: Tucker admitted lying to the detective during their first interview about the incident and in the later interview told the detective that Tucker would apologize to A.R. about the incident if they had the chance to speak again. The evidence thus supported the necessary inferences on the element of the offense that Tucker caused A.R. to touch Tucker's sexual organ.

As for the element of the intent to arouse or gratify Tucker's sexual desire, "the requisite specific intent . . . can be inferred from" the defendant's conduct and remarks and all the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). Relevant circumstances for inferring such an intent include other similar instances of the defendant's illegal sexual contact with children. See Morgan v. State, 692 S.W.2d 877, 881 (Tex. Crim. App. 1985).

The record here included, in addition to the evidence recounted above, plenty of evidence about similar instances of Tucker's illegal sexual contact with children and about a link between children and Tucker's arousing or gratifying her sexual desires:

▪ Tucker admitted to an instance involving a third person's perceiving that Tucker was masturbating to thoughts of children. At the time of the incident, A.R. had been in Tucker's room with her but then left. Tucker started masturbating. A neighbor saw Tucker doing it through a window and called out that Tucker was "a sicko or something," which Tucker believes was the neighbor's "perceiv[ing] that [Tucker] was jacking off to thoughts of" A.R.

▪ Tucker admitted that she "lusts for the body of children, especially female children," expressing that "children are born with bodies that [Tucker] wishes [s]he was born with." The detective interpreted the subtext of Tucker's statements as sexual. Tucker also described children's bodies, including when nude, as works of art.

▪ Tucker admitted that she herself is "not a safe person to watch children," at least in part because she is "a monster" for having touched the children inappropriately.

▪ Tucker admitted that there could have been times when she masturbated under her blanket while a child was in the room with her.

▪ Sycks's daughter reported that Tucker had inappropriately touched her, including once when Tucker pulled the child's pants down while in the bathroom and touched the child's vagina with Tucker's hand or finger.

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