Connell v. State

• Decision Date: 02 August 2007
• Docket Number: No. 2-05-468-CR.,2-05-468-CR.
• Citation: 233 S.W.3d 460
• Parties: Jay Preston CONNELL, Appellant, v. The STATE of Texas.
• Court: Texas Court of Appeals

233 S.W.3d 460

Jay Preston CONNELL, Appellant, v. The STATE of Texas.

No. 2-05-468-CR.

Court of Appeals of Texas, Fort Worth.

August 2, 2007.

Wallach, Andrews & Stouffer, P.C., and Richard A. Henderson, Fort Worth, TX, for Jay Preston Connell.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney and Chief of the Appellate Section, Danielle A. Kennedy, Steven Jumes, and Kim D'Avignon, Assistant Criminal District Attorneys, Fort Worth, TX, for the State.

PANEL B: DAUPHINOT, HOLMAN, and McCOY, JJ.

MEMORANDUM OPINION¹

BOB McCOY, Justice.

I. Introduction

A jury convicted Appellant Jay Preston Connell of three counts of indecency with a child by contact and one count of indecency with a child by exposure. The jury acquitted Connell on one count of indecency with a child by contact. The jury sentenced Connell to two years' confinement on each of the indecency with a child by contact counts and ten years' community supervision on the indecency with a child by exposure count. In eight issues, Connell argues that the evidence on all four counts is both legally and factually insufficient to support the guilty verdict. We affirm in part and reverse in part.

II. Background Facts

Connell met the complainant, I.R., while Connell was a teacher and principal at the Trinity Baptist Temple Academy, a private scripture-based Bible school. The acquaintance between I.R. and Connell spanned approximately seven years from when I.R. was seven until he was fourteen. Because of I.R.'s father's declining health, Connell, at I.R.'s mother's request, became a "father figure" to I.R. Connell frequently invited I.R. over to his house because Connell's son was a year older than I.R. I.R. would also routinely spend the night at Connell's residence, at times up to two or three times per week. Connell also periodically removed I.R. and other children from school to eat or run errands.

During the times when I.R. spent the night at Connell's house, Connell would sleep in the living room either with I.R. alone or with I.R. and other children who also happened to be spending the night. Connell would often rub I.R.'s back and bare bottom to help him fall asleep. Occasionally Connell would reach under the waistband of I.R.'s boxers and pull I.R.'s boxers down or tell I.R. that he could pull his boxers down. I.R. testified that on occasion Connell's hand dropped into I.R.'s "crack" and touched I.R.'s anus. The rubbing of his bare bottom made I.R. uncomfortable. These rubbing incidents always occurred under a blanket. While I.R.'s mother was aware of the back-rubbing incidents, she was unaware of and did not give permission for rubbing of the bare bottom. I.R. testified that Connell's hand "certainly" touched I.R.'s anus on at least one occasion but possibly more than once. On one occasion Connell's hand touched I.R.'s genitals after I.R. rolled over during one of the rubbing incidents. I.R. stated that Connell told him it was an accident. On cross-examination, I.R. initially stated that he specifically recalled Connell touching his anus but later testified that he was unsure whether Connell's hand actually made contact with his anus. Although I.R.'s mother confronted Connell about rubbing I.R.'s bare bottom, Connell's practice of rubbing I.R.'s bare bottom continued.

During sleep-overs, the boys would also often engage in "pantsing fights" in which the children would pull one another's pants down. One of the other children pulled Connell's pants down exposing Connell's genitals. Connell also participated by pulling down I.R.'s pants, thereby exposing I.R.'s genitals. I.R. testified that Connell did not reprimand the children for these acts or discourage that behavior. In his statement, Connell acknowledged that during wrestling matches with the boys it was not uncommon for somebody's pants to slide down.

On two other occasions, Connell touched I.R.'s genitals. The first incident involved a "tick check" following a family camping trip. I.R.'s mother directed I.R. to check himself for ticks after both she and I.R.'s sister discovered ticks on themselves. I.R. checked himself, but I.R.'s mother was unconvinced of his thoroughness. The following day, I.R.'s mother told Connell about the incident prompting Connell to inquire if she would like for Connell to examine I.R. I.R.'s mother understood that the check would include I.R.'s genitals, and I.R.'s mother consented to the examination.

The second incident occurred when I.R. approached Connell to discuss I.R.'s fear of not being able to produce semen. Connell had I.R. remove his pants after which Connell physically checked I.R.'s testicles for "knots" or anything that would cause "obstructions of sperm." Following the inspection, which turned up no evidence of anything unusual, Connell recommended to I.R. that he see a doctor. I.R.'s mother was unaware of and did not give permission for this examination. I.R. was fifteen at the time this case was brought to trial.

III. Indecency with a Child by Contact

In issues one, two, four, five, six, and eight, Connell challenges the legal and factual sufficiency of the evidence to support his guilty verdict on the indecency by contact counts.

A. Standards of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See TEX.CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.App.2000).

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App.2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the fact-finder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.App.1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.

An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Moreover, an opinion reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001); Johnson, 23 S.W.3d at 7.

B. Applicable Law

A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2003). "Sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: 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).

C. Counts One and Two — Anal Contact

Connell argues in his first and fifth issues that the evidence was both legally and factually insufficient to support the verdict for count one: indecency with a child by contact of I.R.'s anus. He argues in his second and sixth issues...