Pollock v. State

• Decision Date: 27 June 2013
• Docket Number: No. 02–12–00362–CR.,02–12–00362–CR.
• Citation: 405 S.W.3d 396
• Parties: Gregory POLLOCK, Appellant v. The STATE of Texas, State.
• Court: Texas Court of Appeals

405 S.W.3d 396

Gregory POLLOCK, Appellant

v.The STATE of Texas, State.

No. 02–12–00362–CR.

Court of Appeals of Texas, Fort Worth.

June 27, 2013.

Chris Raesz, Chris Raesz, P.C., Denton, TX, for Appellant.

Paul Johnson, Crim. Dist. Atty., Charles Orbison, Asst. Crim. Dist. Atty., Chief, Appellate Division, Lara Tomlin, Rick Daniel, Michael Dickens, Asst. Crim. Dist. Attys., Forth Worth, TX, for the State.

PANEL: GARDNER and WALKER, JJ.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).

OPINION

SUE WALKER, Justice.

I. Introduction

A jury convicted Appellant Gregory Pollock of continuous sexual abuse of a young child, and the trial court sentenced him to life in prison without parole. In four issues, Pollock argues that the evidence is insufficient to support his conviction, that the continuous sexual abuse of a child statute is unconstitutional, and that the trial court erred by not quashing the indictment, by submitting an improper jury charge that allowed for a nonunanimous verdict, and by assessing the maximum punishment. We will affirm.

II. Factual and Procedural Background

Pollock's fourth wife is Cathy, and in 2007 through 2009, they lived together in Flower Mound with Cathy's daughter Mary and son Paul.¹

In 2007, when Mary was eleven years old and in the sixth grade, she told her school counselor Jill Adams that Pollock had asked her to pose in lingerie for him. Mary said that when she asked Pollock for an allowance, he responded by asking if she wanted to make big girl or little girl money. He then asked if she would pose in lingerie if he bought it for her, and she refused. Adams reported the incident to CPS. Adams also talked to Cathy about the allegation. Adams testified that Cathy cried and asked what she should do; Adams told Cathy to keep Mary away from Pollock until CPS could investigate.

Cathy sent Mary to stay with a friend for about a week while Cathy “tried to get to the bottom of it and find out what was going on.” Mary then recanted her story. Mary told a CPS investigator that she made up the story to get back at Pollock. Mary also told Adams that she made up the story; Adams testified that Mary was nervous during the recantation and avoided Adams for the rest of the school year.

Another counselor at Mary's school testified at trial that during Mary's seventh grade year, when Mary was twelve years old, she told him that Cathy had made her recant her story to the CPS investigator the previous year. In seventh grade, Mary met and became best friends with Julie, who was also in seventh grade at Mary's school. Mary also confided in Julie that Pollock sexually abused her.

Around Christmas Eve of 2009 while Julie was at Mary's house, Julie encouraged Mary to tell Cathy about the sexual abuse. Cathy overheard the girls talking and asked what Mary had to tell her, stating, “It ... better not be about [Pollock] ... because I'm not falling for that anymore.” Mary told Cathy that Pollock had performed oral sex on her and that she had performed oral sex on him. Cathy called Pollock and confronted him about the allegations. She decided not to contact the police.

Shortly thereafter, Mary stayed the night at Pollock's son's house and told his wife, Rachael, about the abuse. Rachael had Mary write down everything that had happened between her and Pollock. Mary wanted Rachael to take her to the police station that night because Mary said that no one in her family believed her. Rachael did not do so, but when she dropped off Mary with Cathy the following day, Rachael told Cathy about Mary's allegations and gave Cathy the letter that Mary had written. Cathy got mad and told Mary, “I told you not to tell anybody.” Cathy told Rachael that she did not know what to do because she “just love[s] [Pollock] so much.” She also told Mary, in front of Rachael, that Mary would not have a place to live if she continued making the allegations against Pollock. Mary later told Rachael's mother Christine about the abuse, and Christine reported it to CPS.

CPS Investigator Rebecca Burchett and Flower Mound Police Department Detective Joe Adcock conducted an audiotaped interview of Mary, who told them that Pollock took nude photographs of her, put his fingers in her female sexual organ, performed oral sex on her, and received oral sex from her in exchange for money, cigarettes, drugs, and privileges. Mary said that she refused Pollock's requests to have sex with her. Forensic interviewer Krystal Powell with the Children's Advocacy Center for Denton County also interviewed Mary. Mary told Powell about the abuse and said that, in order to get a puppy, she had “to do that stuff” for two weeks and perform oral sex on Pollock. A few days later, Mary wrote a paper at school in which she explained that Pollock sexually abused her, that Cathy did not believe her until Pollock admitted to taking photographs of Mary, and that Cathy told her that Pollock would go to jail if Mary told on him. Mary also wrote that Cathy said the abuse “would never happen to [Mary] again.”

Detective Adcock went to Pollock and Cathy's house and spoke with them. The detective had a digital audio recorder in his jacket pocket and recorded the exchange. Cathy said that Julie influenced Mary to make up the accusations against Pollock. Pollock denied doing anything to Mary. Detective Adcock searched the residence and recovered three phones, includingPollock's and one found in Mary's bedroom. Pollock's phone did not contain any sexually explicit photographs of Mary.² The phone did contain text messages between Pollock and Mary; in them, Mary said that she “didn't want to tell on” Pollock but that Julie made her, and Pollock responded, “I know.” ³ During the search, police found in Cathy's purse the letter that Mary wrote at Rachael's house.

Several days later, Pollock and Cathy went to the police station to talk to Detective Adcock. Pollock admitted in a recorded interview that he took between twenty and fifty nude photographs of Mary on three or four occasions in 2009 but said that he deleted them all; he denied the other allegations. He said that he gave Mary “cigarettes and privileges” in exchange for posing for the photographs and explained to her, “Can't get nothing for free.” He said he took the photographs because he lost his job, was depressed, and was smoking marijuana.⁴ Pollock also wrote a handwritten confession.

Investigator Burchett and Detective Adcock also interviewed Julie, who confirmed that Mary told her that Pollock took photographs of her nude, made her model lingerie, touched her, performed oral sex on her, and had her perform oral sex on him. Julie said that Pollock gave her and Mary drugs, money, cigarettes, and privileges. Julie also told the investigator and detective that she had been sexually abused by her uncle when she was younger.

Several months after Pollock was arrested, Mary recanted her allegations against Pollock. She told Detective Adcock that she and Julie made up the allegations to keep themselves out of trouble. Mary testified at trial and denied that Pollock had ever sexually abused her. She testified that she either did not remember or had lied about what she told Investigator Burchett, Detective Adcock, Rachael, and the school counselors. She also said that she wrote the paper at school because she “had nothing to write about.” Mary did not remember sending Pollock texts apologizing about telling on him because she was high when she sent them. She testified that she and Julie made up the story about Pollock as an excuse if they ever got in trouble for doing drugs or “[h]anging out with ... older guys.” She also said that she made up the allegations because she did not have many friends and wanted attention.

Mary's biological father testified at trial and said that Mary told him that she recantedthe allegations because Cathy told her to.

Julie testified at trial and recanted the allegations. She said that she and Mary made up the story after Cathy caught them in a lie when they went to a boy's house. Julie said that she and Mary made up the story based on Julie's experience with her uncle sexually abusing her.

Cathy testified that, in an unrecorded conversation at her house, Detective Adcock said Pollock would probably get probation if he took the lesser charges against him and admitted to taking nude photographs of Mary.⁵ She said that she and Pollock did not know that taking photographs alone could result in a sentence of twenty-five years' to life imprisonment. Cathy testified that she and Pollock lied to Detective Adcock about the nude photographs because they did not want Cathy's family to get involved and to “just get it over with, done with.” Pollock also testified that he made up the story about taking photographs of Mary because he wanted to handle the situation “quickly and quietly.” He thought that the case would be dropped without any evidence.

III. Sufficiency of the Evidence

In his first issue, Pollock argues that the evidence is insufficient to support his conviction and that the trial court erred by not granting his request for a directed verdict.

The standard of review applicable to a motion for directed verdict is the same used under a sufficiency review. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.), cert. denied,522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997); Havard v. State, 800 S.W.2d 195, 199 (Tex.Crim.App.1989). In our due-process review of the sufficiency of the evidence to support a conviction, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App.2012). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the...