McCormick v. State
| Decision Date | 27 September 2021 |
| Docket Number | 08-18-00073-CR |
| Parties | JOSEPH MCCORMICK, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do Not Publish
Appeal from the 143rd District Court of Reeves County, Texas (TC# 17-01-08135-CRR)
Before Rodriguez, C.J., Palafox, and Alley, JJ.
A jury convicted Appellant Joseph McCormick of continuous sexual assault of a child under the age of fourteen, a first-degree felony offense. Tex Penal Code Ann. §§ 21.02(a)-(c)(2, 4), (h), 22.011(c). The trial court sentenced Appellant to confinement for sixty years. This appeal followed.
A.A the child victim in this case, is Appellant's stepdaughter. A.A. first met Appellant when she was five years old and was later adopted by him.
Appellant's last alleged incident of sexual abuse occurred one or two nights before Appellant made her outcry on November 22, 2015. Appellant tried to touch A.A., but she began rolling around and pretended to be asleep. Appellant touched A.A.'s female parts under her clothes and put his fingers inside her. A.A. testified this had happened before-continuously and almost daily-beginning when she turned eleven. Shortly before A.A.'s twelfth birthday on May 29, 2015, at around 1:00 or 2:00 a.m., Appellant picked her up, turned her sideways put his male sexual organ in her female part for about two to three minutes, and told her to be quiet. After she turned twelve, Appellant made her touch "his male part."
On November 22, 2015, A.A. began screaming at her younger sister "about what had been going on[.]" After learning about the sexual abuse, A.A.'s sister told their mother. A.A. had not reported her sexual abuse to any adult before her sister told their mother. A.A. told her mother Appellant "had been sexually assaulting" her. A.A.'s mother then asked her to write a statement; A.A. handwrote signed, and dated a statement on November 22, 2015. A.M asked A.A. if her allegations were true and then called Heather McGhee, a close friend and doctor. The following day A.A. met McGhee in her office and spoke with her about Appellant's repeated sexual abuse. McGhee did not examine A.A. but asked whether she had been touched inappropriately. A.A. confirmed the sexual abuse.
On November 23, 2015, a report of sexual abuse of a child was made and Sergeant Jose Angel Gonzalez of the Reeves County Sheriff's Office was assigned to the case. That day, Sergeant Gonzalez spoke with twelve-year old A.A. and her mother. Sergeant Gonzalez confirmed Appellant was 27 years old at the time. His investigation documented A.A. made her outcry on November 22, 2015, first to her younger sister, who was less than eighteen years' old, and then to her mother. Sergeant Gonzalez asked A.A. if she told her mother the truth, which A.A. confirmed.
A.A.'s written statement was admitted at trial as State's Exhibit 2 over Appellant's hearsay objection. A.A.'s statement reads as follows:
It started when I was 11 years old. He started with my upper parts of my body. Then he started with the bottom part of my body. Then he started with all my body parts. After awhile he started sticking his finger up me. He has done this for awhile [sic]. One day it was just me and him alone at the house. My mom and brother and sister where [sic] not home. I just came inside and he told me to go in my room. He took off my pants and underwear. I told him not to[.] I told him don't. He did not listen. He told me to go to sleep. When I pretended to be asleep he stuck his penus [sic] up me. I did not know what to do. I was scared to tell. Then my mom told me a story about this girl that got pregnat [sic] by her stepfather so I did not know what to say. Then I turned 12 years old and it [sic] was still doing it to me. He would go in my room at night and stick his finger up me. He would do it to me maybey [sic] a week every month in a role [sic]. I thought he would stop. Be he would not[, ] he kept doing it to me. I did not want to tell know [sic] one about it. I was scare[d]. Then one night he went in my room again and this time he picked me up and turned sideways and stuck his penus [sic] up in me again. I was scared that he would get me pregnat [sic]. I was scared to tell because I did not want to ruin the relationship with my mom and stepfather. He kept going in my room almost every night. I would pretend to sleep and I would fight against it. Then I finally want [sic] to make it stop. I did not want to do it anymore. He would make me touch his penus [sic] when I pretend to be asleep. I had to much[, ] I couldn't take it. Then my sister told my mom and I told her everything. I was so scared that he was going to do the same thing to my brother and sister. I don't want him to hurt me anymore. So that [sic] what happened to me.
An interview for A.A. was scheduled at Harmony Home, a child advocacy center. Shirley Del Campo, a forensic interviewer at Harmony Home, interviewed A.A. on November 24, 2015. Del Campo testified A.A. did not contradict or recant her allegations of sexual abuse. Under cross-examination, Del Campo clarified A.A. stated the last act of sexual abuse occurred in her bedroom on the Friday-rather than the Saturday-before her outcry. A.A. said Appellant penetrated her female organ with his male organ twice, but Del Campo did not recall A.A. making any reference to acts of sexual abuse occurring in the parent's room, the living room, the barn, or the car.
Sergeant Gonzalez observed the forensic interview through a video monitor and took custody of the recorded interview. The recording, which was admitted into evidence over Appellant's objection, was published to the jury in two formats as State's Exhibits 3 and 4.
During the recorded interview, A.A. stated Appellant touched her private parts, pointing to her breast and groin areas. A.A. was given a drawing of the front and back of a naked child and was asked to mark where Appellant touched her. A.A. circled the breast, genital, and buttocks areas. The drawing was admitted into evidence and A.A. referred to it throughout the forensic interview. A.A. explained Appellant would squeeze the marked areas and would place his finger inside her, as she pointed to the genital area of the child in the drawing. A.A. stated Appellant last touched her "this past Friday" while everyone was asleep. A.A. described that while wearing only his underwear, Appellant went to her shared bedroom and stood at the side of her bed. He tried to touch her "in all of those places" and touched her under her clothes in the marked areas of the drawing, placing his fingers "up in [her] . . . where the boy's parts go," and made her touch him. A.A attempted to "fight" Appellant and tried to get him to stop by pretending to be asleep and tossing and turning. When Appellant finished, he went to the bathroom, washed his hands, and returned to his room.
A.A. explained "he's done that before a lot"-almost daily-beginning when she was eleven, but she was too scared to tell anyone. The first episode A.A. remembered-Appellant stuck his hand up her shirt and "squeeze[d] them" then touched her genital area beneath her clothing. During the commission of the sexual assault over the years, if A.A.'s mother or anyone else walked in, Appellant would pretend he was rubbing A.A.'s belly, but when Appellant touched A.A., they were generally either alone, or everyone was asleep.
A.A. recalled the previous year Appellant took her to her room and told A.A. to go to sleep. A.A. closed her eyes but did not sleep. Appellant took off her pants and underwear, slightly pulled down his pants and underwear, then "stuck his thingy"-"the boy's private part"-in her genital area. Appellant's body was "going back and forth." A.A. told him to stop, but he would not. Appellant did this a second time after her birthday in May 2015. While A.A. was asleep in her room, Appellant picked her up, turned her sideways, pulled down her shorts and underwear, and stuck his "thingy" in her while he stood on the side of the bed and moved his body back and forth. When he finished, Appellant turned A.A. back to her previous position and covered her up.
A.A. had seen Appellant's "thingy" many times because he would grab her hand and make her touch it. Appellant did this a lot-almost every time he went into A.A.'s bedroom, and she would yank her hand back to make him stop. Although A.A. would toss and turn to stop Appellant from touching her, he would not stop-he "kept trying and trying." A.A. decided to come forward because she "was getting 'scareder and scareder' [sic] every time he came into [her] room," and was "really uncomfortable with it." She tried to tell her sister, but A.A.'s sister thought she was lying and would tell her "it was just a dream." A.A. declared it was not a dream and explained Appellant would whisper in her ear, telling her to open her legs. A.A. never told anyone other than her sister. When A.A. and her sister argued over it one day, their mother learned of the abuse.
Miriam Jansky was A.A.'s therapist for two years after her outcry. At trial, Jansky testified to A.A.'s outcry. Without objection, Jansky explained A.A. exhibited maladaptive coping skills, including guilt, shame, sadness nightmares, inability to sleep, and adoption of protective behavior, such as wearing tight pants for bed-a practice A.A developed "to keep [Appellant] away" and continued to use due to a traumatic need to protect herself. These maladaptive coping skills, Jansky explained, are consistent with child sexual abuse. According to Jansky,...
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