Bays v. State
| Decision Date | 07 December 2011 |
| Docket Number | No. 06-10-00114-CR,06-10-00114-CR |
| Parties | MICHAEL JAY BAYS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Before Morriss, C.J., Carter and Moseley, JJ.
Michael Jay Bays appeals his convictions for continuous sexual assault of a child and sexual assault of a child. His ten points of error can be grouped as follows: challenges to the sufficiency of the evidence to support the convictions; improper admission of hearsay testimony; improper admission of expert testimony; the constitutionality of the continuous sexual assault statute; and the cumulative effect of these purported errors. We affirm the trial court's judgment because (1) sufficient evidence supports the conviction for continuous sexual abuse of a child, (2) sufficient evidence supports the conviction for sexual assault of a child, (3) "outcry" testimony from great-grandmother Jean was admissible as a prior consistent statement, (4) admitting expert testimony from Kelsey Drennan was within the discretion of the trial court, (5) admitting expert testimony from Bunny Terrell was within the discretion of the trial court, (6) admitting expert testimony from Jamie English was within the discretion of the trial court, (7) it was not error to admit testimony that two complainants' statements are "consistent," (8) Section 21.02 of the Texas Penal Code does not apply to a bench trial, and (9) there was no cumulative error.
Bays was charged in three indictments, alleging various sexual offenses against three girls, who we will refer to as Charlotte, Emily, and Anne.1 In the first indictment, resulting in this appeal, Bays was charged, in count one, with the offense of continuous sexual assault of Charlotte;and in count two, with the offense of sexual assault of Charlotte.2 After a six-day bench trial, the trial court found Bays guilty of both counts alleged to have been committed against Charlotte, and sentenced Bays to twenty-five and ten years' imprisonment, respectively. On appeal, Bays challenges the sufficiency of the evidence to support these two convictions.
In evaluating the legal sufficiency of the charged offense, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref d). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
Charlotte, Bays' step-granddaughter, testified to the trial court. At the time of her testimony, she was fourteen years old and in the eighth grade. She had lived with Bays and his wife, Barbara, before Charlotte's fifth-grade school year, and there was both a pool and hot tub atthe house.3 In the pool or hot tub Bays touched Charlotte under her bathing suit. He touched her "boobs," and put his fingers in her vagina and moved his fingers. "It happened a few times, maybe three." On one occasion, in the hot tub, other adults were by the hot tub when Bays put his fingers in Charlotte's vagina, and Charlotte thought her mother knew it was happening. Later, when Charlotte told her mother, though, her mother "flipped out." That led Charlotte to conclude that her mother had not known what was occurring in the hot tub. Charlotte said she told Barbara about the abuse several times, but was not believed, or that Barbara did nothing about Charlotte's reports. She tried to tell her great-grandmother Jean; this was when Charlotte was "a little older than" Emily, who was ten years old at the time of trial. But Charlotte admitted she
Charlotte described other occasions, while she was living in the Bays home, where Bays would engage in inappropriate touching. Bays took Charlotte to parades and water parks. Sometimes Emily and Barbara would attend, and sometimes not. Charlotte explained how sometimes they would not arrive at the destination:
Either he would stop to mess with me or we wouldn't go or we'd have to turn back and go. But, I mean, most of the time we'd go to the parade, but we'd end up stopping for that reason, and then we end up going back - - like going to the parade.
"Messing with" meant "[t]ouching me in places that I shouldn't be touched at . . . My vagina and just everywhere really." This touching was done with Bays' fingers. Charlotte said these events continued over a span of Sometimes Bays made Charlotte hold his penis, with his hand on top of hers to "squeeze it [and] move it." This kind of touching occurred "five times at most." Bays also " No acts of oral sex are alleged in the indictment. At the time of trial, Charlotte had recently turned fourteen. When asked by the State whether "some of these things happen[ed] in 2007 and 2008 and 2009?" and if "it happen[ed] more than two or three times in those years?" Charlotte replied, "Yes" to both questions. Charlotte also described riding a four-wheeler, with Bays seated behind her; he was touching her vagina, asking if it felt good, but she did not state whether he was touching her inside or outside of her clothes. Charlotte was certain of the last time Bays assaulted her—her birthday, February 3, 2009. However, that incident was made the subject of a separate count in the State's indictment for sexual assault of a child, resulting in a separate conviction, which we discuss later in this opinion.
We first review the sufficiency of the evidence to prove the continuous sexual assault allegation. Based on the indictment and the statute, the State had to prove that, over a span of thirty or more days, Bays committed two or more acts of sexual abuse against Charlotte. See TEX. PENAL CODE ANN. § 21.02. The indictment alleged those acts of sexual abuse to be indecency with a child by contact, by touching Charlotte's genitals; indecency with a child by causing Charlotte to touch Bays' genitals;4 and sexual assault by penetrating Charlotte's sexual organ with Bays' finger.5 The indictment alleged Bays committed these acts over a period "from on or about January 1st 2008 through January 30th 2009," during which period Bays was seventeen years of age or older and Charlotte was fourteen years old or younger and not Bays' spouse.
Bays' defense was to challenge Charlotte's credibility and the degree of specificity in her testimony. Through his cross-examination of State's witnesses and in recalling Charlotte to the stand, Bays emphasized Charlotte's history of drug abuse and hospitalization for mental issues, which included prescription antidepressants and medication used to treat bipolar disorder and schizophrenia. Bays impeached Charlotte's testimony by playing for the trial court limited sections of a forensic interview where Charlotte, about ten months before trial, made allegations of the sexual abuse to Drennan, an interviewer for the Longview Children's Advocacy Center.6 Charlotte acknowledged that, in that earlier statement, she made no allegations of oral sex, or "rape," which she clarified as meaning penetration of her sexual organ with Bays' sexual organ. Also, during her subsequent examination, Bays questioned Charlotte about an incident she described where she told Drennan that Charlotte, Emily, and Anne were all sitting on Bays' lap in the living room of Bays' house. However, at trial, Charlotte had said that only Emily and Anne, not Charlotte, were on Bays' lap. Questioned about this inconsistency, Charlotte said, "I must have made that part up because I was not sitting on his lap." Bays cites this testimony as a distilled example of Charlotte's untrustworthiness.
Bays also presented several schoolmates of Charlotte, who opined she was not believable and often told lies. The State played a video interview Bays gave to police shortly after they began their investigation. Bays said in the video he may have accidentally touched the girls while playing. When he testified at trial, Bays said he had not slept much the night before giving that statement, as he was distraught when Child Protective Services (CPS) removed his daughter Emily from the home.
Part of Bays' argument is that, because Charlotte offered no specific dates for any of the sexual offenses (except for the incident she said occurred on her birthday, addressed below), the State failed to prove its allegations. The statute does not require specific dates. Bays also argues that, because Charlotte alleges some of the events occurred before January 1, 2008, there is no wayof knowing which, if any, alleged...
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