Donald D. Barker v. State

Opinion issued July 1, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00225-CR (Count I) NO. 01-10-00378-CR (Count II) ——————————— Don O’Neal Barker, Appellant V. The State of Texas, Appellee On Appeal from the 159th District Court Angelina County, Texas Trial Court Case No. CR-28170* MEMORANDUM OPINION The trial court convicted appellant Don O’Neal Barker on two counts of indecency with a child by contact and sentenced him to twenty years’ confinement in prison on each count. See Tex. Penal Code Ann. § 21.11 (Vernon Supp. 2009). Count I alleged that Barker touched the breast or anus of Linda Lock (appellate case number 01-09-00225-CR), and Count II alleged that Barker touched the breast or anus of Amy Lock (appellate case number 01-10-00378-CR). On appeal, Barker challenges the legal and factual sufficiency of the evidence to support his convictions, arguing that Linda recanted her outcry before trial. We affirm. Background Sisters Amy and Linda were aged 8 and 9, respectively, at the time of the incidents that are the basis of this appeal. Amy and Linda had little contact with their mother, who was married to their father but who had been living with another man for several years. Amy and Linda lived with various relatives intermittently, including their father, their maternal grandmother, whom they called “Mimi,” their maternal great-aunt, and their maternal great-grandmother, whom they called “Granny.” Mimi was married to Barker. During various times when the girls lived with Granny, their father lived with them as well. Around Christmas 2007, the girls were living with Granny. Their mother brought them and their two younger half-sisters to visit Mimi and Barker at their home. Amy and Linda testified that during this visit Barker touched their breasts under their clothes. Linda testified that Barker also touched her vaginal area and buttocks beneath her clothes on the same occasion. In addition, the trial court admitted into evidence a note Linda wrote that described this incident (and another incident of sexual abuse that allegedly occurred a few years earlier). Linda testified that Mimi returned home shortly after Barker fondled her and she told her what happened, saying, “Mimi, are you just going to stand here and let him do this to me?” Linda testified that her grandmother said, “I don’t believe you.” Linda testified that she cried for days afterward and initially denied anything had happened because she feared for her mother’s safety. She eventually told her mother and Granny on February 11, 2008. They called the girls’ great-aunt. The great-aunt asked Amy if Barker had ever done anything to her. Amy initially refused to talk about it but later wrote a note, which was admitted at trial. The note said that Barker “reached his hand down my shirt.” Amy’s great-aunt testified that Amy then told her that around Christmas, while visiting Mimi and Barker, Barker “put his hand down her shirt, her blouse, and touched her on the breast.” The great-aunt testified that Amy “made a slit-throat gesture” and nodded yes when asked if Barker threatened to kill her. Granny and the girls’ great-aunt reported the incident to the Angelina County Sheriff’s Department. Their great-aunt called Child Protective Services (CPS) the next day, and Linda then spoke privately to a CPS investigator. Both girls were interviewed at Angelina Alliance for Children, and both girls entered counseling with Marisa Phillips, who worked for Buckner Children and Family Services, providing counseling for children referred by CPS. The forensic interviewer who spoke to the girls at the Angelina Alliance for Children testified at trial, and the video recordings of their interviews were admitted and played during the guilt-innocence phase of trial. Both girls were subpoenaed to testify at a hearing regarding revocation of Barker’s parole for a crime unrelated to this case. Their father testified that the parole hearing was stressful for the girls and that Linda required anxiety medication in order to testify. After the outcry, Linda became depressed, began wetting her bed, crying easily, experiencing night terrors, and exhibiting anger. Linda eventually entered counseling for depression with Dr. Tom Middlebrook. After having contact with her mother, she expressed suicidal ideations and she was hospitalized for seven days. During the hospitalization, she recanted her outcry, saying she realized she should tell the truth. At trial, she testified consistently with her outcry and she testified that her prior disavowal was a lie designed to stop the questioning. She said: I told him [the doctor/counselor] I lied because I wanted to leave. I didn’t want to do this anymore. . . . I didn’t want to go to no more of these court things that you-all are having. . . . I don’t want to have to deal with you-all no more. I don’t like the questions you-all ask. You wouldn’t like it if somebody asked you questions like you-all ask me. I was lying when I said that I was lying about all this stuff. When I said I was lying, I was lying. I wasn’t telling the truth. The only thing that I was thinking about when I said I was lying that if I said I was lying, I wouldn’t have to deal with you-all asking me all these questions, making me feel like you-all are paparazzi and I was a person that had to answer you-all all the time. Barker testified and unequivocally denied the charges against him. He said, “I’ve never touched those children. . . . I’ve never touched them sexually.” Barker accused the girls’ great-grandmother of coaching them to make false accusations against him because she did not like him. Mary Budke testified as a character witness for Barker. In 2005 and 2006, Barker and Mimi lived in a trailer on Budke’s property in Silsbee, Texas. She testified that she knew of Barker’s troubles with illegal drugs and with the law and that she “never saw any indication of any inappropriate behavior on his part towards any child.” She also testified that she had once reported him to the sheriff’s department after he verbally threatened to kill her, but she said that she “never, never intended for him to go back to jail.” She also made a statement in Barker’s support after the lawyers concluded their questioning of her, saying “I cannot and do not believe that he would ever hurt a child. And I just want to put that on the record. I believe in his innocence.” Mimi also testified in support of Barker. She testified that the girls lived with her from 2005 until approximately February or March 2007. During that time, Barker spent approximately nine months in prison. Mimi testified that she and the girls wrote to Barker when he was in prison and the girls sometimes drew pictures for him. The trial court admitted four such letters, in which both girls expressed affection for Barker. Three of the four letters were dated from 2006. Mimi testified that the girls’ mother brought them to her home approximately a day or two after Christmas 2007. She denied that Linda told her Barker touched her inappropriately while at her house, and she denied telling Linda that she disbelieved her. Mimi testified that she first heard about the allegations in February 2008. She also accused her mother of coaching the girls to make false accusations because she did not like Barker. Furthermore, Mimi testified that she did not believe Barker committed the alleged acts. The trial court found Barker guilty and asked the parties to discuss an agreed disposition before he assessed punishment. Barker indicated that he might have material information that could be used to negotiate with the prosecutor, however the information might be adverse to another of his defense attorney’s clients. The trial court permitted Barker’s attorney to withdraw and appointed a new attorney for the punishment phase of trial. After a brief hearing in which no testimony was heard, the trial court sentenced Barker to twenty years’ imprisonment on each count, to run concurrently. On appeal, Barker challenges the legal and factual sufficiency of the evidence to support these convictions. Standard of Review Legal Sufficiency When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). Factual Sufficiency In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have acquitted. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the factfinder’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the trial court’s judgment. See id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the judgment. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In reviewing the factual sufficiency of the evidence, appellate courts should afford almost complete deference to a factfinder’s decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). In a bench trial, the trial court judge is in the best position to judge the credibility of a witness because he is present to hear the testimony, as opposed to an appellate court relying on the cold record. Id.; see Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978) (“The jury, or trial judge in a trial before the court, is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defense witnesses.”). The factfinder may choose to believe some testimony and disbelieve other testimony. Lancon, 253 S.W.3d at 707. Indecency with a Child by Sexual Contact A person commits indecency with a child if he engages in sexual contact with a child younger than 17 years old who is not that person’s spouse. Tex. Penal Code Ann. § 21.11(a)(1), (b-1) (Vernon Supp. 2009). “Sexual contact,” as defined within Penal Code section 21.11, means “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child.” Id. § 21.11(c)(1). The uncorroborated testimony of a child victim alone is sufficient to support a conviction for indecency with a child. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). Analysis Linda testified that Barker touched her breasts and vaginal area under her clothes while visiting his house around Christmas 2007. In the recorded interview, which was played during the guilt-innocence proceeding, she described the inappropriate contact. Linda’s handwritten note describing Barker touching her breast around Christmas 2007 was admitted at trial. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient to support Barker’s conviction of count I, i.e., that he engaged in sexual contact with Linda, a child younger than 17 years old who was not his wife. See Drichas, 175 S.W.3d at 798; Lee, 176 S.W.3d at 458. Amy testified that Barker touched her and pointed to the breast area of a doll that was used as a demonstrative aid to her testimony. Her handwritten note describing Barker’s inappropriate touching of her was admitted at trial, as was the video recording of her interview at Angelina Alliance for Children, in which she told the forensic investigator that Barker touched her breast. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient to support Barker’s conviction of count II, i.e., that he engaged in sexual contact with Amy, a child younger than 17 years old who was not his wife. See Drichas, 175 S.W.3d at 798; Lee, 176 S.W.3d at 458. We overrule Barker’s legal sufficiency issue as to both counts. As to factual sufficiency, Barker argues that Linda recanted her outcry and thus the evidence was inconsistent and “could support a theory of innocence as well as guilt.” Barker denied touching either Linda or Amy inappropriately, and Mimi and Budke testified that they did not believe the allegations against Barker were truthful. Mimi denied that Linda had made an outcry to her. Phillips, the counselor, testified that Linda recanted her outcry while hospitalized, saying that she realized she should have told the truth. Phillips’s treatment records, which were admitted at trial, also reflect that Linda recanted her outcry and later became equivocal about whether Barker had done anything inappropriate to her. Both Barker and Mimi testified that Granny did not like Barker and that they believed she had coached them to make false accusations against Barker. However, although Linda previously recanted her outcry, at trial she explained her reasons for the disavowal and testified consistently with her earlier outcry. It is axiomatic that the trier of fact is the sole judge of the credibility of the witnesses and must resolve inconsistencies in the evidence. See Johnson, 571 S.W.2d at 173; Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d) (“[I]t is well established that outcry testimony is substantive evidence of guilt that is sufficient to support a conviction beyond a reasonable doubt . . . . Furthermore, when a witness recants prior testimony, it is up to the fact finder to determine whether to believe the original statement or the recantation.”); Maldonado v. State, 887 S.W.2d 508, 509 (Tex. App.—San Antonio 1994, no writ) (“Just because the complaining witness recants incriminating testimony does not mean the evidence is insufficient.”). Here, the evidence contrary to guilt relies on a determination of credibility, and we afford almost complete deference to the trial court’s evaluation. See Lancon, 253 S.W.3d at 705. Having considered all of the evidence in a neutral light, we conclude that the evidence of Barker’s guilt is not so weak that the verdict is clearly wrong or manifestly unjust, nor is it contrary to the great weight and preponderance of the evidence. See Johnson, 571 S.W.2d at 173. We hold that the evidence is factually sufficient to support Barker’s convictions on both counts I and II, and we overrule Barker’s factual sufficiency issues on both counts. Conclusion We affirm the judgment of the trial court. Michael Massengale Justice Panel consists of Justices Jennings, Alcala, and Massengale. Do not publish. Tex. R. App. P. 47.2(b). * Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. The complainants’ names in this opinion are pseudonyms used in the indictments and in the trial court.