Riordan v. State

Decision Date04 August 2017
Docket NumberNO. 03-16-00297-CR,03-16-00297-CR
PartiesJustin Riordan, Appellant v. The State of Texas, Appellee
CourtTexas Court of Appeals



A jury convicted appellant Justin Riordan of the offense of aggravated sexual assault of a child and assessed his punishment at confinement for ten years in the Texas Department of Criminal Justice. See Tex. Penal Code §§ 22.021(a)(1)(B)(i), (2)(B), 12.32. On appeal, appellant challenges the sufficiency of the evidence supporting his conviction and complains about improper jury argument, the trial court's denial of his motion for new trial, the trial court's failure to make findings of fact and conclusions of law, egregiously harmful error in the jury charge, and the admission of expert testimony. We affirm the trial court's judgment of conviction.


The jury heard evidence that in 2014, 13-year-old K.S. spent Valentine's Day weekend with her aunt Sheila,2 Sheila's husband Jeff, and their daughters, 15-year-old C.R. and 18-year-old Ashlyn, at their home. That Saturday, K.S. met 28-year-old appellant, who was a friend of the family, for the first time. The following Saturday, K.S. again spent time with her aunt's family. On that occasion, several others joined K.S. and the family for a day of barbecuing, drinking, and socializing, including appellant and another family friend, 20-year-old Cole. The evidence showed that everyone at the get together, including the minor children, drank alcohol.3 The gathering extended into the evening hours, and appellant and Cole spent the night.

The testimony reflected that appellant took K.S., C.R., Cole, and two others "backroading" (driving the country roads) in his truck that evening until Jeff called and told appellant to bring the girls home because they were young and it was getting late. When they returned to the house, at around midnight, Jeff and Ashlyn were in the living room watching TV. Ashlyn was in the recliner seat in the middle of the sectional couch, and Jeff was in separate recliner. Cole and C.R. laid down together on the long part of the sectional couch. K.S. laid down on the shorterloveseat side of the couch. Appellant sat in the recliner seat with Ashlyn, on the side where K.S. was laying down. Apparently appellant was flirting with Ashlyn, but she rejected his advances. Cole and C.R. fell asleep where they were laying on the long side of the sectional couch. Eventually, Jeff, and later Ashlyn, left the room and went to bed.

At that point, the testimony indicated, the TV was on but the living room lights were off. K.S. testified that appellant had moved to the short loveseat part of the couch with her and was sitting with her legs in his lap. According to K.S., appellant started "messing with [her] feet" and then began "rubbing [her] legs," touching them "higher and higher." K.S. told the jury that appellant then unbuttoned her shorts and took both her shorts and underwear off. She said that he got up to turn off the TV, returned to the couch, and got on top of her. K.S. explained that she was on her back, and appellant was laying with his lower body in between her legs. He had not removed his clothing, but his pants were "lowered . . . pulled down a little bit." According to K.S., appellant then engaged in sexual intercourse with her, "sticking his penis in [her] vagina." After less than ten minutes, appellant "finished." K.S. testified that he pulled up his pants, told her not to tell, and threw her shorts and underwear at her. He also covered her with a blanket that was on the back of the couch. K.S. said that she tried to put her underwear back on, but couldn't see in the darkness, so she put them under the couch and just put her shorts on. She then went to sleep there on the couch. Appellant returned to the recliner seat of the couch. K.S. testified that in the morning, she woke up to go to the restroom. She retrieved her underwear from under the couch and went to thebathroom. K.S. described blood in the toilet when she peed.4 After using the bathroom, K.S. went to C.R.'s bedroom and slept some more. K.S. testified that when she woke up later that morning, she took a shower. She said that while she was in the shower, appellant left the house. The evidence reflected that neither C.R. nor Cole woke up during the encounter between appellant and K.S. When they awoke in the morning, appellant was in the reclining seat of the couch and K.S. was no longer in the room.

The testimony reflected that after breakfast that morning, C.R. noticed that K.S. was "acting different." She explained that when she went into her bedroom and asked K.S. why she was in her bed, K.S. was "kind of being standoffish." C.R. said that she "tried to ask [K.S.] what was wrong" but "[s]he never would tell [her]." After appellant left, C.R. told her mom that something was wrong with K.S. Sheila went to K.S. and asked her if "something bad" happened. Upset and crying, K.S. disclosed to Sheila and C.R. that appellant had had sex with her during the night. According to Sheila's testimony at trial, K.S. indicated that she was unsure if appellant had penetrated her. K.S. did, however, complain to her that she was sore in her vagina.

The evidence demonstrated that in response to K.S.'s disclosure, before contacting K.S.'s mother, Sheila texted appellant. She told him that "we all know what happened last night." She asked if he used a condom and expressed her concerns about K.S. getting pregnant. She also conveyed her dismay at his conduct: "She is 13 [appellant] what in the hell were you thinking." The evidence showed that the following text exchange ensued:

 Appellant Sheila  What happened    Is this [appellant]5  Yes    [K.S.] said you had sex with her   We'll [sic] I'm waiting  What I remember [is] going in side[sic] the house and sitting on thecouch by ashlynI can't talk right now but I willcall in a little while    We'll [sic] [K.S.] said you had sexwith her and now she's hysterical  What the hell I hope notI don't remember much of last night   

In her final text, Sheila told appellant that "[she] need[ed] to know cause [sic] [K.S.] is going to tell her mom and it is gonna [sic] be considered rape[.]"6

The evidence reflected that after the text session, Sheila and C.R. took K.S. to her mother, Jennifer. Sheila asked Jennifer to get in the car, and they drove around while K.S. told her motherwhat happened. According to Sheila, Jennifer "flipped out" and yelled at Sheila to take them home, warning that K.S.'s father, Gary, was "going to kill everybody that was at the barbecue." At K.S.'s house they walked in and K.S. sat on her bed while Jennifer told Gary what happened. Gary went and got his gun, loaded it, and put it on K.S.'s bed. Sheila recounted that both of K.S.'s parents were upset, yelling at K.S. and "hounding [her] pretty bad."7 They blamed her for not resisting by screaming, yelling, or crying out. Sheila then called the police from K.S.'s house.

K.S. testified that the following day, her parents took her to Walgreens and got her the Plan B, or "morning after," pill to prevent pregnancy. Her mother then took her to the emergency room "to get checked." At the hospital, a sexual assault nurse examiner conducted a sexual assault examination of K.S. The nurser examiner testified that she noted redness to K.S.'s hymen at the 3:00 position, redness to her posterior fourchette at the 6:00 position, and redness to her labia minora from the 3:00 to 9:00 position.8 The nurse examiner described the redness as "minor acute injur[ies]," meaning the injuries were recent. Further, she indicated that these injuries—past the labia majora, or the outer lips of the female sexual organ, and into the labia minora and to the hymen, which is the collar of tissue that sits at the opening of the vagina—were consistent with penetration of K.S.'s sexual organ.


In six points of error, appellant challenges the sufficiency of the evidence supporting his conviction, complains about improper jury argument by the prosecutor, claims that the trial court erred in denying his motion for new trial as well as by failing to make requested findings of fact and conclusions of law in connection with its ruling on the motion, asserts that error in the jury charge caused him egregious harm, and contends that the trial court erred by admitting the testimony of the State's expert on the dynamics of child sexual abuse.

Sufficiency of the Evidence

The indictment in this case charged appellant with aggravated sexual assault of a child, alleging, in relevant part, that he

did then and there intentionally or knowingly cause the penetration of the sexual organ of K.S., a child who was then and there younger than 14 years of age, by the defendant[']s sexual organ[.]

In his first point of error, appellant asserts that the evidence is insufficient to support his conviction for this offense.

Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our sufficiency review we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex....

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