Lindy Odane Ashton v. State

11th Court of Appeals Eastland, Texas Opinion Lindy Odane Ashton Appellant Vs. No. 11-03-00322-CR -- Appeal from Taylor County State of Texas Appellee A jury convicted Lindy Odane Ashton of indecency with a child. Appellant pleaded true to both enhancement allegations, and the State introduced additional evidence during the punishment phase. The trial court assessed punishment at 35 years imprisonment. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2003) provides that a person commits the offense of indecency with a child by engaging in sexual contact with a child. TEX. PENAL CODE ANN. § 21.11(c)(1) (Vernon 2003) defines “sexual contact” as any touching, including touching through clothing, by a person of any part of the genitals of a child with the intent to arouse or gratify the sexual desire of any person. Issues on Appeal In appellant’s first issue on appeal, he contends that the evidence was legally and factually insufficient to prove that he intended to arouse or gratify a sexual desire. In appellant’s second issue on appeal, he contends that his conviction was based upon the uncorroborated testimony of the child victim and, therefore, that the conviction was fundamentally unfair and violated his right to due process. We affirm. Standards of Review In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr. App.2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury is the judge of the weight and credibility of the witnesses’ testimony, and due deference must be given to the jury’s determination. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981); Johnson v. State, supra at 8-9. The Testimony Melissa Massey, K.A.’s mother, was the first witness for the State. Melissa testified that she lived with Landy Ashton and that K.A. was the oldest of their three daughters. K.A., the victim, was six years old at the time of the offense and eight years old at the time of the trial. Melissa said that Landy’s brother (appellant) and his wife Linda needed a place to stay. They moved in with Melissa and Landy in June 2001. Appellant and Linda were given K.A.’s bedroom, and K.A. moved into the playroom. Appellant and Linda separated in August or the first part of September, and Linda took their baby to her mother’s home. Appellant remained but moved out during the first week in October. Melissa said that she observed a change in K.A.’s attitude toward appellant before appellant moved out in October. Toward the end of September and the first of October, K.A. told appellant a few times that she did not like him. About three weeks after appellant moved out, Landy was put in jail. Melissa called appellant for help one morning because there was no water coming into her house. Appellant came over to help Melissa find the leak. After assisting Melissa, appellant asked Melissa if he could move back in with Melissa and her daughters until he could earn enough to get an apartment. When Melissa told K.A. and her sisters that appellant was going to stay with them again, Melissa saw that they did not want appellant to move back in, but she did not know why. As the outcry witness, Melissa testified that, around the middle of November, appellant was out of town and that K.A. said that she had something to tell Melissa. K.A. told her mother that appellant had come into her room, pulled her panties down, and then touched her private area. K.A. said that she woke up when appellant pulled her panties down. K.A. told her mother that she told appellant to leave after he touched her. K.A. said that another time appellant stood in her doorway naked and holding his penis while she was watching television. K.A. again told him to leave or she was going to tell her mother. K.A. also told her mother about a third time when appellant came in, sat down on the side of her bed, and again touched her private area. That time, appellant touched her private area just above her panties. K.A. told her mother that she had not told Melissa before because she had not wanted “to be in trouble.” The next morning, Melissa asked her sister to come over. K.A. then repeated what she had told Melissa the night before. Melissa then called the police. They made a report, and K.A. talked to the police officer. During cross-examination, Melissa was asked why she did not ask K.A. for a reason when K.A. told appellant that she hated him and did not want appellant moving back to live with them. Melissa testified that she did ask K.A. but that K.A. would not tell her. K.A. only looked at appellant at the time and said to him: “You know why.” K.A. was the only other witness for the State. K.A. testified that appellant did something “nasty” to her three times. She said that she was wearing her nightgown with a Barbie decal on it when appellant pulled her panties down and touched her vagina the first time. She acknowledged that she called her vagina her “private” back then. K.A.’s testimony about the other two times was similar to the testimony given by her mother, Melissa. Defense counsel thoroughly cross-examined K.A., and K.A. remained consistent in her testimony. The defense witnesses were Donald Osias Ashton, father of appellant; Laddy Ashton, the older brother of Landy and appellant; Laddy’s wife; and Wanda Henning, the former wife of Donald Ashton and the mother of Laddy, Landy, and appellant. Each testified that they were at a family gathering after the three events supposedly occurred and that they saw no reluctance on K.A.’s part to being around appellant. They also testified that K.A. lied on occasion, although they gave no convincing examples. On cross-examination, Donald admitted that everyone drank alcohol during the entire reunion and that he believed what happened to K.A. was “a family matter.” Also on cross-examination, Wanda admitted that she had gone to visit her son Landy (K.A.’s father) while he was in jail in Breckenridge because she wanted Landy to testify for appellant and against K.A. Landy did not testify. Wanda also admitted that she told Melissa that she was angry with her “because [she] called the cops.” Analysis The specific intent to arouse or gratify the sexual desire of a person as an element of the offense of indecency with a child can be inferred from conduct, remarks, or all the surrounding circumstances. Couchman v. State, 3 S.W.3d 155, 163 (Tex.App. - Fort Worth 1999, pet’n ref’d); Nelson v. State, 893 S.W.2d 699, 705 (Tex.App. - El Paso 1995, no pet’n). An oral expression of intent is not required, and a defendant’s conduct alone is sufficient to infer intent. Tyler v. State, 950 S.W.2d 787, 789 (Tex.App. - Fort Worth 1997, no pet’n). The jury could have inferred that appellant had the specific intent by his “sexual contact” of K.A. on two separate occasions and by his naked appearance in her doorway. We hold that the evidence was legally and factually sufficient to prove that appellant intended to arouse or gratify a sexual desire. Appellant’s first issue is overruled. Appellant’s Second Issue In his second issue, appellant contends that his conviction for indecency with a child was based upon the uncorroborated testimony of a child victim; therefore, the verdict was fundamentally unfair and violated his right to due process. Appellant’s argument appears to be that the evidence was legally insufficient because the verdict was based upon K.A.’s testimony. In Carmell v. Texas, 529 U.S. 513 (2000), the Supreme Court held that the Texas courts had erred in allowing uncorroborated testimony by the child victim to support four of Carmell’s convictions for sexual offenses. Effective September 1, 1993, TEX. CODE CRIM. PRO. ANN. art. 38.07 (Vernon Supp. 2004 - 2005) had been amended to allow the victim’s testimony alone to support a conviction if the victim was under 18 years of age. Prior to that time, Article 38.07 had provided that, if the victim was over 14 years of age, the victim’s testimony had to be corroborated by other evidence or the victim had to have made an “outcry” within 6 months of the alleged offense. At the time of some of the offenses in Carmell, the child victim was over 14 years of age, and she had not made a timely outcry. The Texas court of appeals had held that the convictions could be based upon the uncorroborated testimony of the child victim because the court viewed Article 38.07 as a procedural rule and, therefore, the amended version applied at the time of trial. The United States Supreme Court reversed, holding that the pre-1993 version of Article 38.07 applied and that the Texas court’s application of the amended Article 38.07 violated the ex post facto clause. The Supreme Court in Carmell reasoned that Article 38.07 is a sufficiency-of-the-evidence rule. The Court stated that, under the pre-1993 version of Article 38.07, a victim’s testimony alone was admissible but that it was insufficient for a conviction unless there was other corroboration evidence or an outcry witness. Id. at 546-48. The current version of Article 38.07 provides that the uncorroborated testimony of a victim is sufficient. The Carmell Court also pointed out that TEX.R. EVID. 601(a) is a competency rule, as opposed to Article 38.07, and that Rule 601(a) recognizes that a child can be a competent witness. In our case, K.A. was a competent witness, and Article 38.07 provides that her testimony alone would have been sufficient evidence. However, K.A. did make an outcry to her mother, and her mother provided further testimony as an outcry witness. Appellant’s second issue is overruled. The Punishment Phase Appellant pleaded true to two enhancement allegations: a DWI and an attempted burglary of a habitation. The State also introduced as a witness, B.A., the older half sister of K.A. B.A. testified that her mother and Landy had separated and that, for a while, she had lived with Landy and Melissa. B.A. testified that appellant had committed the same offense with her when she was 7 years old that he later committed with K.A. B.A. said that her father, Landy, pulled appellant off of her and threw appellant out but that nothing else was done. B.A. later left to live with her mother. Appellant’s wife also testified against him. She stated that, while appellant was in the county jail prior to this trial and she was pregnant, he wrote her and described his sexual fantasies involving their unborn daughter. The trial court assessed punishment at 35 years confinement in the Insti-tutional Division of the Texas Department of Criminal Justice. This Court’s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE March 17, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.