Jessop v. State

• Decision Date: 19 April 2012
• Docket Number: No. 03–10–00078–CR.,03–10–00078–CR.
• Citation: 368 S.W.3d 653
• Parties: Raymond Merrill JESSOP, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

368 S.W.3d 653

Raymond Merrill JESSOP, Appellant,

v.The STATE of Texas, Appellee.

No. 03–10–00078–CR.

Court of Appeals of Texas, Austin.

April 19, 2012.

Franklyn R. Mickelsen, F. Clinton Broden, Broden & Mickelsen, Dallas, TX, Van Galen Hilley, Gerald Harris Goldstein, Cynthia E. Orr, Goldstein, Goldstein & Hilley, San Antonio, TX, Karyl Anderson Krug, The Law Office of Karyl Krug, P.C., Scottsdale, AZ, for Appellant.

Joseph P. Corcoran, Matthew Dennis Ottoway, Edward Larry Marshall, Assistant Attorneys General, Postconviction Litigation Division, Austin, TX, for State.

Before Chief Justice JONES, Justices PEMBERTON and HENSON.

OPINION

J. WOODFIN JONES, Chief Justice.

Appellant Raymond Merrill Jessop and nine other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), living at the YFZ (Yearning for Zion) Ranch in Schleicher County, Texas, were indicted for sexual assault of a child.¹SeeTex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011). Subsequently, a jury convicted appellant and assessed his punishment at confinement for eight years in the Institutional Division of the Texas Department. See id. § 12.33 (West 2011). This appeal followed. Appellant brings forward thirty-five points of error. We affirm the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background of this case are fully discussed in prior opinions of this Court, most recently in our opinion in Jeffs v. State, No. 03–10–00272–CR, 2012 WL 601846, at *1–4 (Tex.App.-Austin Feb. 24, 2012, no pet. h.) (mem. op., not designated for publication), and will not be repeated here. We discuss further background details only as necessary to address the points of error raised by appellant in this appeal.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

In his first two points of error, appellant challenges the sufficiency of the evidence. First, he asserts that the evidence is insufficient to support his conviction for sexual assault of a child because the State failed to prove the element of penetration. Second, he contends that the evidence is insufficient because it fails to demonstrate that the sexual assault occurred in Texas.

Additional Background

Appellant, a lifelong member of FLDS, moved to the YFZ Ranch in Schleicher County, Texas, in December 2003 with his family—including multiple “celestial wives” and numerous children—and lived with them in a single residence on the ranch. On August 12, 2004, appellant was “sealed” in a spiritual or celestial marriage to J. Jessop, a female FLDS member born September 16, 1988, who had also moved to the YFZ Ranch in December 2003. The ceremony took place at the “prophet's” house on the ranch in Schleicher County when J. Jessop was 15 years old and appellant was 32. Following the celestial marriage ceremony, appellant and J. Jessop lived together in the same household, purportedly as husband and wife. On August 15, 2005, when she was 16 years old, J. Jessop gave birth on the ranch to a daughter. DNA testing confirmed that appellant was the biological father of the child.²

Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App.2011). When reviewing the sufficiency of the evidence to support a conviction, we consider 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 offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781;Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010). The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.2009); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

In determining the legal sufficiency of the evidence, we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007); Moff v. State, 131 S.W.3d 485, 489–90 (Tex.Crim.App.2004); Allen v. State, 249 S.W.3d 680, 688–89 (Tex.App.-Austin 2008, no pet.). We review all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318, 99 S.Ct. 2781;see Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). A legal-sufficiency review requires us to defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. When faced with a record of historical facts that supports conflicting inferences, we must presume that the trier of fact resolved any such conflicts in favor of the verdict and must defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. 2781;Padilla v. State, 326 S.W.3d 195, 200 (Tex.Crim.App.2010). The jury, as exclusive judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton, 235 S.W.3d at 778;seeTex.Code Crim. Proc. Ann. art. 38.04 (West 1979). In assessing the legal sufficiency of the evidence, we have a duty to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007); see Winfrey v. State, 323 S.W.3d 875, 882 (Tex.Crim.App.2010).

Evidence of Penetration

Appellant was charged with the offense of sexual assault of a child. SeeTex. Penal Code Ann. § 22.011(a)(2)(A), (c)(1),(2). The State alleged in the indictment, and had the burden to prove, that appellant intentionally or knowingly caused the penetration of the female sexual organ of “J. Jeffs Jessop,” a child younger than 17 years of age who was not the spouse of appellant, with appellant's sexual organ. In his first point of error, appellant argues that the evidence is insufficient to prove penetration. He complains that the State's evidence was largely circumstantial and failed to eliminate the possibility that J. Jessop could have become pregnant by artificial insemination.³ He points to the lack of testimony from J. Jessop as support for this contention.

The lack of direct evidence is not dispositive of the issue of appellant's guilt. The State is not required to present direct evidence to establish guilt. See Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004); Sanders v. State, 346 S.W.3d 26, 32 (Tex.App.-Fort Worth 2011, pet. ref'd). Indeed, circumstantial evidence is as probative as direct evidence in establishing guilt and may alone be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007); Sanders, 346 S.W.3d at 32. The law does not require that each fact “point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13;see Guevara, 152 S.W.3d at 49;Sanders, 346 S.W.3d at 32. The standard of review on appeal is the same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App.2010); Hooper, 214 S.W.3d at 13;Guevara, 152 S.W.3d at 49.

Moreover, it is not incumbent upon the State to exclude “every reasonable hypothesis other than guilt” for the evidence to be considered sufficient.⁴Geesa v. State, 820 S.W.2d 154, 157–61 (Tex.Crim.App.1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex.Crim.App.2000); Sanders, 346 S.W.3d at 32;Villarreal Lopez v. State, 267 S.W.3d 85, 97–98 (Tex.App.-Corpus Christi 2008, no pet.) (citing Harris v. State, 133 S.W.3d 760, 763–65 (Tex.App.-Texarkana 2004, pet. ref'd)); see Orona v. State, 836 S.W.2d 319, 322 (Tex.App.-Austin 1992, no pet.) (“ Geesa rightfully abolished the logically inconsistent requirement in a circumstantial-evidence case that a legal-sufficiency review, in which the appellate court must view the evidence in the light most favorable to the prosecution, must also negate the existence of any alternate reasonable hypothesis inconsistent with the defendant's guilt.”).

In a prosecution for sexual assault of a child, penetration may be proven by circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App.1990); Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App.1972); Belt v. State, 227 S.W.3d 339, 342 (Tex.App.-Texarkana 2007, no pet.); Quinton v. State, 56 S.W.3d 633, 641 (Tex.App.-Waco 2001, pet. ref'd). There is no requirement that the child victim testify about penetration. Villalon, 791 S.W.2d at 133;Nilsson, 477 S.W.2d at 596. Evidence of the slightest penetration is sufficient. Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App.1992); see Nilsson, 477 S.W.2d at 595.

At trial, the jury received evidence that both appellant and J. Jessop moved to the YFZ Ranch in Schleicher County, Texas, in December 2003. The evidence showed that appellant was sealed to J. Jessop in a celestial or spiritual marriage for “time and eternity” in August 2004 in a ceremony that was performed on the YFZ Ranch when she was 15 years old.⁵ Evidence further showed that after the marriage ceremony, appellant and J. Jessop lived together in the same household, purportedly as husband and wife, including engagingin a sexually intimate relationship.⁶ Finally, the evidence showed that one year after being sealed in a spiritual marriage with appellant, J. Jessop gave birth to a daughter when she was 16 years old. Additional evidence documented the birth of a baby girl in August 2005 to “Raymond and [J.] Jessop.” DNA testing also established that appella...