Melder v. State
| Decision Date | 14 May 2014 |
| Docket Number | NO. 12-12-00400-CR,12-12-00400-CR |
| Court | Texas Court of Appeals |
| Parties | JEFFIE MELDER, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
APPEAL FROM THE 411TH
JUDICIAL DISTRICT COURT
TRINITY COUNTY, TEXAS
Jeffie Melder appeals his convictions for aggravated sexual assault of a child, sexual performance by a child, and indecency with a child. He raises six issues on appeal. We affirm.
Appellant and Shelly Melder had a tumultuous marital relationship. They married, divorced, remarried, and have since divorced again. Three children were born during their relationship. One of the children, an eight year old at the time of the offenses, is the victim.
Appellant worked as a tug boat operator. As part of his job, he worked in two week shifts away from home. While he was away at work, Shelly, while intoxicated, told Vanessa Hale that Appellant forced her to perform oral sex on the victim. Hale, who was Shelly's friend, asked the victim about the abuse, and he stated that Shelly performed oral sex on him. Appellant discovered that Shelly had disclosed this information, and he reported the abuse to Texas Child Protective Services (CPS). As part of their investigation, CPS and law enforcement agencies were informed that Appellant told the victim to take off his clothes, come in the bedroom, and allow his mother to perform oral sex on him. Shelly also performed oral sex on Appellant. Although the various descriptions of the abuse differed as to when the abuse occurred andexactly how it transpired, the victim stated that during at least one episode of abuse, Appellant forced him to engage in anal sex with Shelly.1
The authorities arrested Appellant and Shelly. Shelly negotiated a plea bargain for ten years of imprisonment in exchange for her testimony against Appellant. Appellant was indicted for aggravated sexual assault of a child, sexual performance by a child, and indecency with a child.
At trial, Appellant did not deny that the abuse occurred. Rather, he claimed that Shelly was solely responsible for the abuse. He asserted that Shelly wanted to deflect responsibility for the offenses in order to avoid a harsh punishment, as well as to obtain revenge against Appellant because of the strife and discord in their marriage.2
When Shelly told her friend about the abuse, she claimed that Appellant held the victim in place while some of the abuse occurred. But when asked at trial, Shelly could not remember whether she told Hale that Appellant held the victim in place because she was intoxicated when she disclosed the abuse. However, she was adamant that Appellant orchestrated the abuse. The victim and the outcry witnesses testified similarly. The victim's testimony was recorded and played for the jury. Defense counsel asked the victim to retell the story of the abuse on several occasions during his testimony. Although the frequency of the abuse and minor details varied as he described the abuse, the victim consistently stated that Appellant forced him to receive oral sex from his mother and forced him to perform anal sex on her. The primary outcry witness, a forensic interviewer, included the recorded transcript of her interview with the victim, which was consistent with the victim's testimony at trial.3
The jury found Appellant guilty of all three offenses, and Appellant elected that the trial court assess his punishment. After a hearing, the trial court assessed Appellant's punishment atsixty years on the aggravated sexual assault of a child count, sixty years on the sexual performance by a child count, and ten years on the indecency with a child count. The trial court ordered that Appellant serve the sentences consecutively "if allowed by law." The trial court's written judgment reflects that the sentences are to be served consecutively. This appeal followed.
In his second issue, Appellant argues that the evidence is insufficient to support his conviction for the sexual performance by a child count. Specifically, he contends that the State was required to prove a sexual performance as opposed to sexual conduct, and it failed to do so.
A person commits the offense of sexual performance by a child if, "knowing the character and content thereof, he employs, authorizes, or induces a child . . . to engage in sexual conduct or a sexual performance." TEX. PENAL CODE ANN. § 43.25(b) (West 2011). "Sexual conduct" includes, among other things, sexual contact, deviate sexual intercourse, or lewd exhibition of the genitals. Id. § 43.25(a)(2). "Deviate sexual intercourse" and "sexual contact" have the meanings assigned by Texas Penal Code Section 43.01. Id. § 43.25(a)(7). That section defines "deviate sexual intercourse" as "any contact between the genitals of one person and the mouth or anus of another person." Id. § 43.01(1) (West 2011). "Sexual contact" is defined in relevant part as "any touching of . . . any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Id. § 43.01(3).
"Sexual performance" means any performance or part thereof that includes sexual conduct by a child younger than eighteen years of age. Id. § 43.25(a)(1). "Performance" means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons. Id. § 43.25(a)(3).
Appellant argues that "[b]ecause [the victim] was [Appellant's child], the statute requires that there be a sexual performance, and in this case there was a lack of proof of any recording[, play, motion picture, photograph, or other visual representation] which would meet the definition of a sexual performance." However, this interpretation ignores that the statute punishes not onlysexual performances, but also inducing, authorizing, or employing a child to engage in sexual conduct. See id. § 43.25(b).
Section 43.25 "criminalizes the inducement of a child's sexual conduct regardless of whether it amounts to a sexual performance." Dornbusch v. State, 156 S.W.3d 859, 870 (Tex. App.—Corpus Christi 2005, pet. ref'd); see also Emenhiser v. State, 196 S.W.3d 915, 930 n.4 (Tex. App.—Fort Worth 2006, pet. ref'd); Summers v. State, 845 S.W.2d 440, 442 (Tex. App.— Eastland 1992, no pet.). Specifically, the statute states that a person commits the offense if he induces the child to "engage in sexual conduct or [separately,] a sexual performance." TEX. PENAL CODE ANN. § 43.25(b). We note that the definition of sexual "performance" includes photographs, videos, recordings, or plays. See id. § 43.25(a)(3). But when the allegation arises from inducing a child to engage in sexual conduct, recording the event through media or acting out a play or performance is not required. See id § 43.25(a)(2), (3); Emenhiser, 196 S.W.3d at 930.
Nevertheless, as part of his argument, Appellant seems to contend that Section 43.25 requires crimes committed under the statute by parents to be categorized as "sexual performances" other than through sexual conduct. This interpretation stems from a sentence in the statute that states "[a] parent or legal guardian or custodian of a child . . . commits an offense if he consents to the participation by the child in a sexual performance." TEX. PENAL CODE ANN. § 43.25(b). The legislature did not include "sexual conduct" in that sentence. The logical extension of Appellant's argument would mean that parents cannot be criminally responsible under the statute for authorizing, employing, or inducing their own child to engage in sexual conduct that does not meet the definition of a sexual performance. We conclude, however, that the legislature did not intend this result.
In construing a statute, we must seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). We look first to the statute's literal text, and we read words and phrases in context and construe them according to the rules of grammar and usage. Id. We must presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. Yazdchi v. State, No. PD-0007-13, 2014 WL 1375461, at *4 (Tex. Crim. App. Apr. 9, 2014). When statutory language is clear and unambiguous, we give effect to its plain meaning unless to do so would lead to absurdconsequences that the legislature could not have possibly intended. Id. Ambiguity exists when the statutory language may be understood by reasonably well-informed persons in two or more different senses. Id. Conversely, a statute is unambiguous when it permits only one reasonable understanding. Id.
With respect to this dispute, giving effect to each word, phrase, clause, and sentence in Section 43.25, the only reasonable understanding is that a person, including a parent of the child, can be guilty of sexual performance by a child if he induces the child to engage in sexual conduct, regardless of whether the action amounts to a sexual performance. See TEX. PENAL CODE ANN. § 43.25. Specifically, a "sexual performance" can include "sexual conduct," but as those terms are defined in the statute, "sexual conduct" need not amount to a "performance" or "sexual performance" in order to constitute an offense. See id.; Dornbusch, 156 S.W.3d at 870; Emenhiser, 196 S.W.3d at 930 n.4; Summers v. State, 845 S.W.2d at 442.
The indictment in this case alleges that Appellant "did then and there intentionally or knowingly authorize or induce [the victim] to engage in sexual conduct, to wit, Shelly Melder by touching the genitals of [the victim] with the intent to arouse or gratify the sexual desire of [Appellant] and/or Shelly Rene Melder." The statute supports the charging instrument. Therefore, the State was required to prove "sexual conduct," not...
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