McKnight v. State
| Decision Date | 23 August 2013 |
| Parties | DONALD ALLEN MCKNIGHT, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
AFFIRM; and Opinion Filed August 23, 2013.
OPINIONBefore Justices FitzGerald, Francis, and Lewis
Opinion by Justice Lewis
A jury found appellant Donald Allen McKnight guilty of aggravated sexual assault of a child (count 1), and prohibited sexual conduct (count 2). The jury found the enhancement paragraphs for two prior felony convictions to be true and assessed punishment for each count at life imprisonment. In nine issues, appellant contends the evidence was insufficient to support his convictions; the convictions violated his constitutional guarantee against double jeopardy; the trial court erred in permitting conviction on a less-than-unanimous verdict with respect to count 1; and the trial court violated his right to non-unanimous consideration of the lesser included offenses of count 1. We affirm the trial court's judgments.
BACKGROUND
At trial, Yolanda Jackson testified that she and appellant married on October 22, 2010, and were married at the time of the alleged offense. They lived in a house at 1601 Leon Street, Kaufman, Texas, with Jackson's three minor sons, her daughter, her daughter's son, and two foreign exchange students. On August 23, 2011, the second day of school, Jackson left home early to go to the store for school supplies and a school uniform for her six-year-old son, C.J. Upon her return, she entered the house through the front door instead of through the garage. Jackson testified that as she walked into the entry hall, she saw appellant and C.J. in the living room. When appellant saw Jackson, he said, "oh crap" and grabbed C.J. up off the couch. Jackson testified that C.J.'s pants were down around his ankles and appellant's pants were undone. Appellant took C.J. into the kitchen area behind the bar and told him to pull up his pants. Appellant also told Jackson it was not what it looked like. Jackson took C.J. into a bedroom to talk to him and get him ready for school. On the way to school, C.J. told her that appellant put his "weasel" (meaning penis) in his bottom and it hurt. He also told her that he was on the couch on his stomach and appellant was behind him. Jackson testified that after taking C.J. to school, she returned home, told appellant to get out, and told him that she wanted him out of the house before her children came home from school. She got on her computer and bought appellant a one-way bus ticket to Seattle to get him to leave. She did not call the police.
Robin Smith, communication supervisor for the Kaufman Police Department, testified that she was the only dispatcher on call on August 23, 2011, when appellant called 911. She talked to appellant and dispatched Sergeant Johnny Gilmore to the house at 1601 Leon Street, Kaufman, Kaufman County, Texas. Sergeant Gilmore, a police officer with the Kaufman Police Department, testified that when he arrived at the house, he met appellant in the yard. Appellant told him that he and his wife were arguing over a van. Appellant explained that his wife askedhim to leave but would not let him take the vehicle. Appellant also told Sergeant Gilmore that his wife was going to tell the police that appellant had done something that was not true. Sergeant Gilmore left appellant outside with Officer Sutton and went inside the house to talk to Jackson. Sergeant Gilmore testified that Jackson appeared to be in shock and did not want to talk. She finally started crying and told Sergeant Gilmore what she saw, and what C.J. told her appellant had done. Sergeant Gilmore then contacted CID Sergeant Edwards and advised him of the situation. Sergeant Gilmore obtained a written statement from Jackson and called the police department's victim coordinator to come to the house.
Officer Court Sutton, a police officer with the Kaufman Police Department, testified that he arrived at the scene to assist Sergeant Gilmore. He remained outside the house with appellant while Sergeant Gilmore went into the house to speak with Jackson. When the police officers learned that appellant had multiple outstanding warrants through the Dallas Police Department, Officer Sutton transported appellant to the Kaufman Police Department.
Sergeant Les Edwards, an investigator with the Kaufman Police Department, testified that once the patrol officers arrived at the house, there was an outcry of a possible sexual assault at which time the patrol officers contacted him to come to the scene. When he arrived at the house, he interviewed Jackson. She was very upset and told him what she saw and about the verbal outcry from C.J. He then went back to the police department to interview appellant. Sergeant Edwards testified that appellant told him he made the 911 call because he and his wife were having a dispute about a van. Appellant told Edwards that he thought his wife had already called the police to accuse him of some kind of sexual molestation. Appellant confirmed that C.J.'s pants were down and his own pants were unbuttoned when Jackson found him with C.J. Appellant told Edwards he was trying to give C.J. a bath to get him ready for school. Sergeant Edwards contacted Presbyterian Hospital in Kaufman to arrange for a sexual assault nurseexaminer (SANE) evaluation of C.J. that afternoon. He also made arrangements for Child Advocacy Center (CAC) forensic interviews of C.J., his brothers, and the foreign exchange students.
Sergeant Edwards testified that he asked Jackson to pick C.J. up from school and take him to the hospital to have the SANE evaluation. Maggie Hudson, a registered sexual abuse nurse examiner at Texas Health Presbyterian Hospital Kaufman, testified that during the SANE evaluation of C.J., he told her that his dad "put his weasel in my bobo and wiggled his body around." He also told Hudson it had happened before. During the physical examination, Hudson observed redness and abrasions around C.J.'s anus. She testified that the redness and abrasions were consistent with the body resisting an insertion. She also testified that the examination revealed no indication of semen or lubricants.
The next morning, Shannon Gardner, Executive Director of the Children's Advocacy Center, conducted the forensic interview of C.J. She testified he did not want to be interviewed and did not say much in response to her questions. He finally made a limited outcry, telling her that "his dad had touched his weasel with his hand and touched his butt."
The jury heard testimony from Ciara McKnight, appellant's fourteen-year-old daughter. She testified that starting when she was about ten years old, appellant would wrestle around with her and would touch her private area. She also testified that her dad then started putting his penis inside her. She stated she had to be treated for chlamydia and that she got it from her dad. She said the sexual assaults continued for about a year. Ciara finally told her aunt what her dad was doing and her aunt told her mother. Ciara said her parents divorced around that time.
C.J. was reluctant to testify at trial. He finally testified that he remembered going to the hospital and talking to Maggie Hudson. He said he remembered telling Hudson what appellanthad done to him. He also said that what he told her was true. He said he thought what appellant did was gross and it hurt.
At the close of the guilt/innocence phase of the trial, the jury found appellant guilty of the offense of aggravated sexual assault of a child, as charged in count 1 of the amended indictment. The jury also found appellant guilty of the offense of prohibited sexual conduct, as charged in count 2 of the amended indictment. At the close of the punishment phase, the jury found both enhancement paragraphs true and assessed appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of life on each count. Appellant filed a motion for new trial, which was overruled by operation of law. Appellant then filed this appeal.
APPLICABLE LAW
A person commits aggravated sexual assault of a child if the person intentionally or knowingly causes his sexual organ to penetrate or contact the anus of a child younger than fourteen years of age. TEX. PENAL CODE § 22.021(a)(1)(B)(i), (a)(1)(B)(iv), (a)(2)(B). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2012); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd). A person commits the offense of prohibited sexual conduct if he engages in sexual intercourse or deviate sexual intercourse with another person he knows to be, without regard to legitimacy, his current or former stepchild. TEX. PENAL CODE § 25.02(a)(2). The statute further defines "deviate sexual intercourse" to include any contact between the genitals of one person and the anus of the other person with intent to arouse or gratify the sexual desire of any person. Id. § 25.02(b)(1).
DISCUSSION
Appellant raises nine issues on appeal. Appellant challenges the sufficiency of the evidence in issues one through six, asserting the evidence was insufficient to: (1) prove territorial jurisdiction for counts 1 or 2, (2) establish counts 1 or 2 as the "earlier offense," and (3) establish counts 1 or 2 as the August 23, 2011 offense. In his seventh issue, appellant contends the trial court erred in permitting a conviction on a less-than-unanimous verdict on the alternative paragraphs alleged in count 1. In his eighth issue, appellant contends his conviction for count 2 violated his Fifth Amendment double jeopardy guarantee. In his ninth issue, appellant contends the trial court violated his right to non-unanimous consideration of the lesser included offenses of count 1.
Appellant's...
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