Lane v. State

• Decision Date: 29 November 2011
• Docket Number: No. 14–10–00925–CR.,14–10–00925–CR.
• Citation: 357 S.W.3d 770
• Parties: Jecarra Tremain LANE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

357 S.W.3d 770

Jecarra Tremain LANE, Appellant,

v.The STATE of Texas, Appellee.

No. 14–10–00925–CR.

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

Nov. 29, 2011.Discretionary Review Refused

Mar. 7, 2012.

Allen C. Isbell, Houston, for appellant.

Eric Kugler, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.

OPINION

TRACY CHRISTOPHER, Justice.

Appellant Jecarra Tremain Lane was convicted for continuous sexual abuse of a young child and sentenced to 30 years in prison. See Tex. Penal Code Ann. § 21.02 (West 2011). He contends that the evidence was legally and factually insufficient to support the jury's finding that (1) he committed two or more acts of abuse over a period of 30 or more days; and (2) both acts occurred on or after September 1, 2007, the effective date of the statute under which he was convicted. He also argues that the trial court failed properly to instruct the jury on the culpable mental state required for the offense. We affirm.

I. Factual and Procedural Background

Appellant first came into contact with J.F.R. when appellant began dating J.F.R.'s mother, Nicole, in 2003. Appellant was 25 or 26 years old at the time, and J.F.R. was seven or eight. Though his dating relationship with Nicole was brief, appellant remained friendly with her and continued to serve as a father figure to J.F.R. and two of J.F.R.'s older brothers. In 2004, appellant founded Chozen Mime Ministry (“Chozen”), a specialized ministry in which participants mime-danced to religious music. Chozen generally consisted of six or seven preteen and teenage participants. J.F.R. joined Chozen when he was about nine years old. Chozen participated in local and regional events. When travelling for these events, the group members would often stay together in a single hotel room. The sleeping arrangements varied on different occasions, but typically, several members would share a bed, with others sleeping on the floor if there was not enough room. J.F.R. generally slept alongside appellant.

In April 2008, J.F.R. told Nicole that appellant had inappropriately touched him in “the front” and in “the back.” According to J.F.R., appellant first abused him at the home of Jacqueline Smith, appellant's godmother. Appellant was living at Ms. Smith's house in the fall of 2007. J.F.R. would sometimes stay there with him on weekends. J.F.R. and appellant slept close together on an air mattress in appellant's room, and appellant would sleep with his arm around J.F.R. On one occasion, J.F.R. woke up to find himself on top of appellant's body with his penis touching appellant's; both were clothed. Appellant moved J.F.R. up and down against his body with his legs and “middle part.” J.F.R. could tell that appellant had an erection because “it was wet” on J.F.R.'s clothes. After about fifteen minutes, appellant moved J.F.R. back to his side and both went to sleep. J.F.R. was not sure when this incident occurred. According to appellant, however, J.F.R. and appellant stayed at Ms. Smith's house on only one occasion, in March 2007. Appellant also stated that other members of Chozen had been there on that occasion and had shared the bed with J.F.R. and him.

A second set of incidents occurred at a Sun Suites location in Houston. According to J.F.R., he and appellant stayed there alone two or three times and with other group members twice. On the occasions that they stayed there alone, they shared one large bed. Appellant and J.F.R. slept “neck to neck,” with appellant's arms around J.F.R.'s waist. On two separate occasions, J.F.R. awoke to find himself on top of appellant, being moved up and down with his penis against appellant's. Officer John Barnes of the Houston Police Department recovered receipts showing that appellant checked in and out of the Sun Suites on three sets of dates in 2008: January 25–26, February 1–2, and February 9–10.

A fourth incident occurred at a Quality Inn and Suites in the Dallas area, where Chozen stayed while attending the Texas Gospel Awards in March 2008. According to J.F.R., he and appellant shared one of two beds in the bedroom. Two other group members shared the other bed, and the remaining members slept on the floor in a separate living room area. After everyone fell asleep, J.F.R. woke up to feel himself being pulled toward appellant. Appellant pulled down J.F.R.'s pants and began to play with J.F.R.'s penis. Appellant then pulled his own pants down and put his penis against J.F.R.'s buttocks. J.F.R. could feel that appellant had an erection. Eventually, J.F.R. could tell that appellant had ejaculated because the sheet on which they were sleeping was wet.

Appellant was charged with continuous sexual abuse of a young child on September 23, 2008. It was specifically alleged that appellant had committed two or more acts of indecency with J.F.R. in Harris County, Texas, on or about September 2, 2007 and on or about March 1, 2008. At trial, the jury was instructed that a person commits continuous sexual abuse of a young child “if, during a period that is 30 or more days in duration, the [accused] commits two or more acts of sexual abuse ... [each of which] is a violation of the following penal law: Indecency with a child.” The jury was further instructed that “indecency with a child” is defined as “intentionally engag[ing] in sexual contact with the child or caus[ing] the child to engage in sexual contact.” The trial court defined “sexual contact” as requiring “intent to arouse or gratify the sexual desire of any person.” It finally stated that “[a] person acts intentionally ... with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” The jury convicted appellant on September 23, 2010, and the trial court sentenced him to 30 years in prison.

II. Issues Presented

In his first and second issues, appellant contends that the evidence was legally and factually insufficient to support the jury's finding that (1) he committed two or more acts of abuse over a period of 30 or more days; and (2) both acts occurred on or after September 1, 2007, the effective date of the statute under which he was convicted. In his third issue, he argues that the trial court failed to properly instruct the jury on the culpable mental state required for continuous sexual abuse of a young child; specifically, he argues that this offense requires an element of intent beyond that required for each individual act of indecency committed.

III. Analysis

A. Evidentiary Sufficiency

Texas courts no longer recognize factual and legal sufficiency as separate bases for reversal in criminal cases. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.); Ruiz–Angeles v. State, 351 S.W.3d 489, 494 n. 2 (Tex.App.-Houston [14th Dist.] 2011, pet. filed). In evaluating challenges to the sufficiency of the evidence, therefore, we apply a single standard of review: we consider all the evidence in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Brooks, 323 S.W.3d at 895. If, when viewed in this light, any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt, then the evidence is sufficient to support the verdict. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Ruiz–Angeles, 351 S.W.3d at 494.

A person commits the offense of continuous sexual abuse of a young child, as applicable here, if (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. Tex. Penal Code Ann. § 21.02(b). An “act of sexual abuse” includes, as relevant here, an act of indecency with a child under Section 21.11(a)(1) of the Penal Code if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child. Id. § 21.02(c)(2). Under Section 21.11(a)(1), a person commits the offense of indecency with a child if the person engages in sexual contact with the child or causes the child to engage in sexual contact. Id. § 21.11(a)(1). “Sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. Id. § 21.11(c). If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. Id. § 21.02(d). The jury need only agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse. Id. A person may be convicted of continuous sexual abuse only if all elements of the offense occurred on or after September 1, 2007. Act of May 18, 2007, 80th Leg., R.S., ch. 593, § 4.01(a), 2007 Tex. Gen. Laws 1120, 1148.

Appellant argues that even if the jury concluded that the incident at Jacqueline Smith's house occurred 30 or more days before the first or second incidents at Sun Suites, it lacked sufficient evidence to conclude that the incident at Ms. Smith's house occurred on or after September 1, 2007. Appellant cites his own testimony that he stayed with J.F.R. at Ms. Smith's house only once—in March 2007, some six months before the effective date of the statute. However, there is evidence that appellant was living at Ms. Smith's house in the “fall of 2007” and that J.F.R. stayed there with him alone....