Cavitt v. State

• Decision Date: 23 April 2015
• Docket Number: NO. 01–13–00900–CR,01–13–00900–CR
• Citation: Cavitt v. State, 507 S.W.3d 235 (Tex. App. 2015)
• Parties: Raymond Lee CAVITT, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

507 S.W.3d 235

Raymond Lee CAVITT, Appellant

v.The STATE of Texas, Appellee

NO. 01–13–00900–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued April 23, 2015

Discretionary Review Refused June 24, 2015

Nicole DeBorde Houston, TX, for Appellant.

Devon Anderson, District Attorney, Clinton A. Morgan, Assistant District Attorney, Houston, TX, for State.

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

OPINION

Sherry Radack, Chief Justice

Appellant Raymond Lee Cavitt appeals his conviction for sexual assault of a child. We affirm.

BACKGROUND

A. Trial Testimony

R.R., the 14–year–old complainant,¹ testified that she met the 59–year–old appellant through a classmate, D.R., who lived with appellant. R.R. and D.R. had been friends since third grade, and R.R. started spending time at appellant's apartment with D.R. when they were in the eighth grade. R.R. initially thought that appellant and D.R. were related because appellant called D.R. his granddaughter, and D.R. referred to appellant as her grandfather.

R.R. testified that D.R. had her own bedroom both at appellant's apartment and at D.R.'s mother's house. Most days, R.R. and D.R. would go to appellant's apartment after school. R.R. and D.R. would "chill and smoke" marihuana there. Appellant supplied marihuana and other drugs to D.R., which D.R. in turn shared with R.R. R.R. would occasionally spend the night with D.R., and they would alternate these sleepovers between appellant's place and D.R.'s mother's nearby house. Usually, when R.R. stayed with D.R., they would sleep in D.R.'s bedroom.

R.R. testified that, on January 2, 2012, she and D.R. were smoking in appellant's bedroom room. They were in appellant's room because the furniture had recently been removed from D.R.'s bedroom by a relative that moved out of the apartment, leaving only appellant's bed in the apartment. Appellant was there, and gave D.R. a drink containing "handlebars," a slang term for prescription Xanax. Appellant left for a few hours, during which time D.R. drank most of the drink, and gave the remainder to R.R. D.R. and R.R. then feel asleep on appellant's bed.

R.R. later woke with the weight of appellant lying on top of her. She testified that she was laying on her stomach, her pajama bottoms had been pulled down around her ankles, her socks pulled off, and she felt pain from appellant trying to force his penis into her vagina. When R.R. demanded to know what he was doing, appellant moved away and said, "I'm just playing with you." Although it was dark, R.R. saw appellant clearly, and she testified that he was wearing a blue shirt and no pants. After unsuccessfully trying to rouse D.R., R.R. went to an apartment upstairs where some of appellant's relatives live.

Upstairs, R.R. told appellant's niece, Dee, and appellant's granddaughter, Gabriale, what appellant had done and that she was unable to wake D.R. before she fled appellant's apartment. Dee and Gabriale then went down to appellant's apartment and Gabriale carried a sleeping D.R. back upstairs to their apartment. Dee or Gabriale called D.R.'s mother, Juanita, who sent her boyfriend, Germane, to pick up D.R. and R.R. and take them back to Juanita's house.

R.R. testified that she did not call her mother to tell her what appellant had done because she was scared and did not want her mother to know that she was doing drugs. When R.R. returned home the following day, however, she told her mother what had happened. Her mother accompanied her to school and told the principal, who in turn contacted the police. R.R. was uncooperative when the first officer tried to interview her, but she eventually talked with a different officer and was then interviewed and examined at the Children's Assessment Center.

R.R. testified that, about one year later, D.R. and Gabriale pressured her to recant her accusation against appellant. Specifically, on January 28, 2013, D.R. wrote out a statement for R.R. and told R.R. to copy it in her own handwriting and sign it. R.R. did so, but testified at trial that she signed the statement only because she had been feeling pressure from appellant's friends and family to "make this go away." She reiterated at trial that despite her written recantation, her original accusations against appellate were true.

The State also presented testimony from the investigating police officer and a doctor from the Children's Assessment Center about their interviews with R.R. The director of therapy and psychological services from the Children's Assessment Center also testified about ways in which a sexual predator will groom children of different ages, and the characteristics of certain targets.

The defense called Gabriale, who also testified about the events of January 2, 2012. Gabriale and Dee had gone to see appellant at his apartment that evening, and had seen D.R. and R.R. sleeping in appellant's bed. While there, Gabriale expressed to Dee that she was concerned about the girls sleeping in appellant's bed given that appellant has a history as a sex offender.

According to Gabriale, it was only about five minutes after she and Dee returned upstairs to their apartment that R.R. appeared banging on their door. R.R. was visibly shaken and told them that appellant had tried to molest her. Gabriale noticed that R.R. no longer had on the socks Gabriale had seen her wearing when she saw R.R. in appellant's bed. R.R told Gabriale that R.R. had tried to penetrate her and that it was painful. R.R. told Gabriale that she did not want to call the police or her mother because she had been doing drugs, but that she was upset that D.R. was still passed out in appellant's apartment. Gabriale testified about her and Dee going to retrieve D.R., carrying her upstairs, and then calling Juanita to have someone come pick up D.R. and R.R. Gabriale testified to seeing R.R. and D.R. at appellant's apartment the following day. Finally, Gabriale explained that after she and D.R. ran into R.R. about a year later, they took R.R. back to Gabriale's apartment to write a retraction letter. Gabriale admitted to "proofread[ing] it only," but denied that she or D.R. assisted R.R. in writing it.

Appellant testified on his own behalf. He testified to several prior convictions that led to a total of thirty-five years of incarceration, including a sixteen-year sentence for sexual assault. He explained that he had pleaded guilty to previous offenses because he was guilty, but that he was not guilty of the current charge.

Appellant testified that D.R.'s mom, Juanita, is his hospice provider. Among other ailments, he suffers from Hepatitis B and C, asthma, lung cancer, bone cancer, and diabetes. In his bedroom, he has oxygen tanks, a computer, and a headboard shelf that holds his medications. He denied allowing anyone to smoke anywhere in his apartment.

Appellant lets D.R. live with him because Juanita cannot control her behavior. R.R. spent a lot of time at appellant's apartment because she was friends with D.R., but appellant has made R.R. go home before. Appellant denied using any drugs that have not been properly prescribed, or giving drugs to anyone in his apartment.

Appellant testified that, on January 2, 2012, he got up about 6:30 a.m. and drove himself to Juanita's apartment, where he stayed until about 2:00 a.m. the next morning. When he returned to his apartment, he cleaned up his kitchen, and Gabriale and Dee came by to visit. After they left, he went in his room, took his medicine, and laid down. He saw D.R. in his bed, but testified that he did not see R.R. at all that day. He said that there was furniture in D.R.'s room on that date, but testified that he did not ask D.R. to move to her own bed because the air conditioner in his room was better. He also testified that some nights D.R. gets up in the middle of the night and comes to sleep in his room because she is scared or hears voices. He also denied owning a blue shirt.

Appellant dropped off to sleep and testified that he woke up when Dee came in and started shaking him. Dee told him "that girl" said somebody touched her. Appellant claims he did not know who "that girl" was, but that he immediately grabbed his phone and called 911 to report it. By the time the police arrived, appellant had learned from Dee that it was R.R. that claimed she was touched. When the police came out, appellant told them that he had not seen a girl in his apartment that day except D.R., and that he wanted to file a complaint.

Appellant testified that he heard noise outside when Juanita's boyfriend picked up D.R. and R.R., so he went outside and saw R.R. and D.R. getting into the car. That is the only time he saw R.R. and he testified that she was wearing a school uniform, not pajama pants.

Appellant testified that he left his apartment again on the morning of January 3, 2012, returning home about 4:30 in the afternoon. When he arrived back at his apartment, D.R. and R.R. were there. Appellant testified that he "spoke to" R.R., who told him "I didn't say you did that." According to appellant, D.R. and R.R. stayed that night in D.R.'s bed in D.R.'s bedroom. Appellant went into his room and locked his door for the night. The next morning, appellant gave R.R. some of his pants to wear to school because she did not have a clean school uniform.

Sometime later, R.R.'s mother came to his apartment and confronted him. A few days after that, a police officer asked appellant to come in to be interviewed. Appellant took written statements by his brother and Juanita to give to the police.

Appellant testified that he did not attempt to molest R.R. He claimed that his bedroom would have been too dark for R.R. to identify him, and that his medications prevent him from maintaining an erection.

Appellant was cross-examined about several inconsistencies between his trial testimony and earlier interviews with police. For example, contrary to his testimony at trial that he could not get an erection, he told police that his medication interfered...