Cox v. State
| Citation | 497 S.W.3d 42 |
| Decision Date | 12 May 2016 |
| Docket Number | NO. 02–14–00399–CR,02–14–00399–CR |
| Parties | Stephan Andrew Cox, Appellant v. The State of Texas, State |
| Court | Court of Appeals of Texas |
Scott Brown, Fort Worth, TX, for Appellant.
Sharen Wilson, Dist. Atty., Debra Windsor, Asst. Dist. Atty., Chief of Post Conviction, Melinda Westmoreland, David M. Curl, Asst. Dist. Attys., for State.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
BONNIE SUDDERTH
In five points, Appellant Stephan Andrew Cox appeals his convictions for aggravated kidnapping and sexual assault of a child. We affirm.
Cox was twenty-six years old and living in Columbus, Ohio when he first connected with Zoe,1 a 14–year–old girl2 living in Haltom City, via the social messaging application known as Kik Messenger. Cox initiated the contact with Zoe, and they talked about Zoe's life and her family. According to Zoe, he was nice to her at the beginning and told her she was pretty. Zoe testified that at some point he asked her to send suggestive pictures of herself to him, and she did.3 Eventually he asked for her phone number, Zoe provided it, and they began communicating through text messages.
After a while, Cox suggested they should run away to Colombia together. According to Zoe, after first directing her to model some clothing for his approval, Cox then instructed her to pack a bag. They agreed to meet on the street outside of her middle school on April 24, a plan Cox told Zoe not to share with anyone else.4
Complying with his instructions, Zoe did not tell her parents about Cox or their plans to run away to Colombia together, and on April 24, Zoe went to school as usual and took the STAAR test. When school was over, she met Cox outside the campus. Once they were together, Cox gave Zoe various other instructions, including that she should act like she was his little sister, avoid talking, and walk behind him so that it wouldn't look like they were walking together. According to Zoe, at some point she forgot to act like his little sister, and this made Cox mad. Zoe added that Cox was “always mad” and when he was mad, he was mean.
From school, they took a city bus to the Greyhound terminal in Fort Worth. While on the city bus, Cox took possession of Zoe's cell phone. Zoe testified that Cox had already purchased the bus tickets and that at this point she did not know where the bus would be taking them. They waited for more than an hour for their bus to arrive, during which time Zoe went to the ladies' restroom once unattended and Cox went to the men's restroom, again leaving Zoe unattended.
After the two had boarded the Greyhound bus and were en route to El Paso, Cox destroyed Zoe's cell phone. Zoe testified that this frightened her because she realized at that point that she had lost the ability to contact her family.5
Zoe testified that she became increasingly afraid as they continued toward El Paso. According to Zoe, while they were on the Greyhound bus, Cox forced Zoe to perform oral sex on him.6
When Cox and Zoe arrived in El Paso, they checked into a hotel room. Zoe testified that nothing sexual took place between them in the El Paso hotel room, but it was at that point that she realized she had gotten in over her head. According to Zoe, once they arrived in El Paso, Cox stayed with her at all times and did not allow her to leave the hotel room without him. When they did leave the hotel room, they went to the library, where Cox used the internet to look for a vehicle and a place to stay.
Eventually, Cox and Zoe walked across a bridge and into Juarez, Mexico. Once in Mexico, they checked into a hotel near the border, and at that point whenever Cox would leave the hotel room, he would lock the door so that Zoe could not leave. Zoe testified that this frightened her because she “never really knew what he was going to do when he came back.” Zoe also testified that once they arrived in Mexico, she did not eat because Cox did not provide her with any food. Against her wishes, he also cut her hair. According to Zoe, at one point she tried to run away from the hotel through an open door, but Cox grabbed her and hit her on her face and on her buttocks.7
While in the hotel room in Juarez, Cox and Zoe twice engaged in sexual intercourse. Zoe testified that he forced himself upon her but that she did not protest while it was occurring because she was “in shock.” According to Zoe, Cox did not wear a condom even though he had purchased some. Zoe described it as painful and testified that she was scared to be with him afterwards.
During their journey, the North Richland Hills police had been monitoring Cox's and Zoe's cell phone activity and had tracked their movements from her school in Haltom City to the Fort Worth Greyhound bus station and on to El Paso. On May 1, however, the police stopped receiving any pings8 on Cox's phone. Nevertheless, they were still able to receive outgoing phone call information that indicated that he had crossed the border into Mexico. The North Richland Hills police contacted the Texas Rangers, who, in turn, contacted the Mexican police, to assist in finding Zoe.
On May 2, eight days after the Greyhound bus carrying Cox and Zoe had left for El Paso, the Mexican police notified the North Richland Hills police that they had located Zoe and Cox at a hotel in Juarez. When the Mexican authorities arrived at the hotel, Cox refused to open the door, so the police broke through it and immediately separated Cox and Zoe. The Mexican authorities then took Zoe to a doctor, who performed a vaginal examination and administered medicine to her.9 After that, Texas Ranger Kevin Wright retrieved Zoe and drove her back to El Paso.
The next morning, Zoe was flown to Tarrant County and taken directly to Cook Children's Hospital, where a second examination was performed by Edwards, who later testified at trial. Edwards took photographs of Zoe, including photos that showed a hickey on her chest, a bruise on her thigh, and the tattoo on her upper arm. She also obtained swabs of Zoe's vaginal area and mouth.10 Edwards described Zoe as “hostile” when questioned, sometimes answering her questions and sometimes not.
After the exam at Cook's, Zoe was interviewed by Carrie Paschall, a forensic examiner at Alliance for Children. In that interview, Zoe denied that Cox had told her not to tell her parents about their plan to go to Mexico. Instead, according to Paschall, Zoe related that she had told Cox she wanted to run away with him because her parents fought. But Paschall also testified that during the interview, Zoe said that Cox had threatened both her and her family.
After the examination and interview, Zoe was reunited with her parents. At that point, according to Zoe, she was happy to be home, and at trial she admitted that she had made some “bad decisions” and expressed regret for going with Cox.
At the conclusion of a week-long jury trial, Cox was found guilty of aggravated kidnapping and two counts of sexual assault. He was sentenced to fifty years' imprisonment on the charge of aggravated kidnapping, ten years' imprisonment on the first count of sexual assault of a child, and fifteen years' imprisonment on the second count of sexual assault of a child.
In his first point of error, Cox argues that the evidence is insufficient to support the conviction for aggravated kidnapping because there is no evidence that he restrained Zoe.
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict 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)
; Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014).
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 (West 1979)
; Dobbs, 434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App.2011) ; see
Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793 ; Dobbs, 434 S.W.3d at 170.
To show that Cox committed the aggravated kidnapping of Zoe, the State had to prove that he intentionally or knowingly abducted her with the intent to violate or abuse her sexually. Tex. Penal Code Ann. § 20.04(a)(West 2011). According to section 20.01(2) of the penal code
, “abduct” means “to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.” Tex. Penal Code Ann. § 20.01(2) (West 2011).
The penal code defines restraint as “restrict[ing] a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person.” Tex. Penal Code Ann. § 20.01(1)
. When the kidnapped person is fourteen years old, as Zoe was at the time, the restraint is ...
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