Keate v. State
| Decision Date | 16 March 2012 |
| Docket Number | NO. 03-10-00077-CR,03-10-00077-CR |
| Parties | Allan Eugene Keate, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. 992, THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING
Appellant Allan Eugene Keate 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.1 See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011). Subsequently, a jury convicted appellant and assessed his punishment at confinement for thirty-three years in the Institutional Division of the Texas Department of Criminal Justice.2 See id. §§ 12.32, 22.011(a)(2)(A), 22.011(f) (West 2011). Thisappeal followed. Appellant brings forward thirty-two points of error. For the reasons below, 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 (). We do not repeat them here. We discuss further background details only as necessary to address the points of error raised by appellant in this appeal.
DISCUSSION
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 lifetime member of FLDS, moved to the YFZ Ranch in Schleicher County, Texas, in January 2004 with his family—including multiple "celestial wives" and numerous children—and lived with them in an assigned residence on the ranch. On May 5, 2005, appellant was sealed in a spiritual or celestial marriage to M. Barlow, an FLDS member born January 7, 1990, who had moved to the YFZ Ranch in July 2004. The ceremony took place at the "prophet's" houseon the ranch in Schleicher County when M. Barlow was fifteen years old and appellant was fifty-three. Subsequent to the celestial marriage, appellant and M. Barlow lived together, purportedly as husband and wife. On December 30, 2006, M. Barlow gave birth to a son when she was sixteen years old. DNA testing confirmed that appellant was the biological father of the child.3
Standard of Review
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 (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; 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: both direct and circumstantial evidence, properly or improperly admittedevidence, and evidence submitted by either 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; 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 also presume that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution. Jackson, 443 U.S. at 326; 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; see Tex. 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. See Tex. 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 organof M. Barlow, a child younger than seventeen 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 the element of penetration. He complains that the State's evidence is largely circumstantial and failed to eliminate the possibility that M. Barlow could have become pregnant by artificial insemination. He points to the lack of testimony from M. Barlow 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.4 Geesa 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 M. Barlow moved to the YFZ Ranch in Schleicher County, Texas, in 2004. The evidence showed that appellant was sealed to M. Barlow in a celestial or spiritual marriage for "time and eternity" in May 2005 in a ceremony that was performed on the YFZ Ranch when M. Barlow was fifteen years old.5 Evidence furthershowed that after the marriage ceremony, appellant and M. Barlow lived together as husband and wife, including engaging in a sexually intimate relationship.6 Finally, the evidence showed that M. Barlow gave birth to a son in December 2006 when she was sixteen years old. DNA testing established that appellant was the biological father of her child.7
A fact finder may support its verdict with reasonable inferences drawn from the evidence. Laster, 275 S.W.3d at 523; Hooper, 214 S.W.3d at 14. Jurors are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Obigbo v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.); Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 19...
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