Moore v. State
| Decision Date | 20 March 2015 |
| Docket Number | NO. 03-12-00787-CR,03-12-00787-CR |
| Parties | Mark Vernon Moore, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. CR11-0929, HONORABLE GARY L. STEEL, JUDGE PRESIDING
A jury convicted appellant Mark Vernon Moore of the offense of continuous sexual abuse of a young child and assessed punishment at life imprisonment.1 The district court rendered judgment on the jury's verdict. In twelve points of error on appeal, Moore challenges the sufficiency of the evidence supporting his conviction; the constitutionality of the statute under which he was charged; rulings and comments made by the district court during jury selection; various evidentiary rulings made by the district court before and during trial; and a comment made by the prosecutor during closing argument. We will affirm the judgment of conviction.
BACKGROUND
Moore was charged with committing two or more acts of sexual abuse against his stepdaughter, K.M., during a period lasting longer than thirty days, between the dates of June 20, 2008 and June 20, 2011. Evidence considered by the jury during trial, which we discuss in more detail below as it becomes relevant to Moore's issues on appeal, included the testimony of: K.M., who was thirteen years old at the time of trial; officers with the Kyle Police Department who had investigated the offense; Janie Mott, a sexual assault nurse examiner (SANE) who had examined K.M.; Melissa Rodriguez, a forensic interviewer who had interviewed K.M. on two occasions concerning the abuse; relatives of K.M., who testified regarding their observations of Moore's behavior when he was around the child; and several defense witnesses, including Moore. Also admitted into evidence were video recordings of Moore's interview with police prior to his arrest; K.M.'s interviews with Rodriguez; and sexual devices that had been used or exhibited by Moore, according to the State, during his commission of some of the acts of abuse.
The jury found Moore guilty as charged and assessed punishment at life imprisonment. After the district court rendered judgment on the jury's verdict, Moore filed a motion for new trial that was overruled by operation of law. This appeal followed.
Sufficiency of the evidence
A person commits the offense of continuous sexual abuse of a young child if, during a time period of thirty or more days, that person commits two or more acts of sexual abuse against a child.2 An "act of sexual abuse" is an act that violates one or more specified penal laws, amongthem indecency with a child by contact, sexual assault of a child, aggravated sexual assault of a child, and sexual performance by a child.3 In his first point of error, Moore challenges the sufficiency of the evidence relating to the timing element of the offense. Specifically, Moore asserts that K.M.'s trial testimony is vague and does not include references to specific dates or times when the acts of abuse were alleged to have occurred. As a result, Moore claims, the jury could not have found beyond a reasonable doubt that he had committed two or more separate acts of abuse, occurring more than thirty days apart, during the period charged in the indictment. We disagree.
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 jury could have found the essential elements of the offense beyond a reasonable doubt.4 We must consider all the evidence in the record, whether direct or circumstantial or properly or improperly admitted.5 We assume that the jury resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict, and we defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony.6
At trial, K.M. testified that she was then thirteen years old and in the eighth grade. She further testified that, when she was in fourth grade, her family, which included her mother, her sister, her maternal grandmother, and Moore, had moved from Indiana to a house on GoldenrodStreet in Kyle. K.M. explained that the first incident of sexual abuse occurred at the house on Goldenrod when she was nine years old. She recounted that she and her sister were sleeping with Moore in his bed when he "rolled over" and touched her sexual organ with his hand. K.M. testified to other sexual acts committed by Moore while the family resided at the house on Goldenrod, describing in detail incidents in which Moore showed her a sexual device that belonged to her mother; showed her pornography on his cell phone; entered the bathroom to observe her while she was showering; masturbated in front of her, sometimes while forcing her to touch his sexual organ while he masturbated; and "rubbed" her breasts with his hands.7
K.M. testified that when she was eleven, her family moved to a new house in Kyle on Spring Branch Drive, where, she recounted, Moore's acts of abuse increased in frequency and severity. K.M. described a "routine" that Moore established with her in which he would make her come into his room around 3:00 a.m. "[e]very night that [her] mom was gone" at work. K.M. explained that during these encounters, he would sexually abuse her in various ways, and she described these acts in detail and testified that such acts "happened a lot." She recounted that certain acts involving oral sex first occurred when she was eleven and continued "for over a year" until she was twelve and decided to report the abuse. Although K.M. could not recall a specific date whenMoore made her perform oral sex on him, she testified that this was "[b]ecause it happened too much." She testified that he made her do so for "over a year" "up until [she] told" others about the abuse. She explained that she would develop a sore throat "twice a month, at least," during this time period, which she attributed to the frequency in which Moore had made her perform oral sex on him. K.M. further testified that while the family resided on Spring Branch, Moore had performed oral sex on her on multiple occasions; penetrated her with a sexual device; and forced her to take photographs of herself with her breasts exposed.
In sum, contrary to Moore's assertions, K.M. was able to provide specific details regarding the acts of abuse, including where they occurred and her age and grade in school at the time they occurred. Beyond that, moreover, the jury heard other evidence from which it could have reasonably inferred that Moore had committed two or more acts of abuse over a period of thirty days or more. This evidence included two video recordings of forensic interviews of K.M. conducted by Melissa Rodriguez, the program director at the children's advocacy center in San Marcos. These statements generally track K.M.'s trial testimony and, the jury could have reasonably inferred, shed additional light on the time period during which the abuse had occurred. During the first interview, K.M. stated that when she was eleven years old, Moore had penetrated her sexual organ with his sexual organ one time while she was in the bathroom. During the interview, K.M. also described a separate incident that occurred on Valentine's Day when she was eleven years old. K.M. recounted that during this incident, Moore had "knocked" her down onto her bed when she was wearing only a towel and had attempted to penetrate her again. K.M. also told Rodriguez during the interview that Moore had placed his fingers inside her sexual organ "more than ten or twenty times for sure"and made her perform oral sex on him "more than once" and at least "ten or twenty" times. K.M. alsodescribed to Rodriguez the most recent incident, which occurred "a couple of weeks or days" before the interview. K.M. explained that Moore had entered her room at night, told her to pull down her pants, and then squeezed her breasts, hurting her. K.M. also stated that Moore had shown her pornographic websites as recently as three or four weeks before the interview. During her second interview with Rodriguez, K.M. provided additional details and described other acts, including Moore forcing her to take showers with him;8 ejaculating on various parts of her body; and forcing her to perform oral sex on him while he performed oral sex on her.
Janie Mott, the SANE nurse who had examined K.M., also testified, and a copy of Mott's report from the examination was admitted into evidence. The report contained a sexual-assault history given by K.M. to Mott, repeating some of the details summarized above. Among other things, K.M. described how Moore would force her to perform oral sex on him, stating that the last time he had done so "was about a month" prior to the SANE exam. Similarly, K.M. stated to Mott that the last time Moore had put his fingers in her sexual organ was "about 2 weeks ago." Mott testified that her physical examination of K.M. uncovered evidence of trauma to K.M.'s hymen, which Mott found to be unusual because "85 to 95 percent of the time" in cases of child sexual abuse, there is no evidence of trauma.
In summary, the jury could have reasonably found that K.M. was nine years old when the abuse began at the house on Goldenrod and that the abuse continued and intensified when K.M. moved to a new house on Spring Branch when she was eleven years old. In her various accounts, K.M. explained that Moore had committed numerous acts of sexual abuse against her on a "routine"basis "every night" when her mother was at work for a period of "over a year" until K.M. finally reported the abuse in August 2011. Based on the evidence summarized above and all reasonable inferences therefrom, considered in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Moore committed two or more acts of sexual...
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