Shumway v. State
| Decision Date | 02 February 2022 |
| Docket Number | PD-0108-20,PD-0109-20 |
| Parties | BRADLEY JACOBS SHUMWAY, Appellant v. THE STATE OF TEXAS |
| Court | Texas Court of Criminal Appeals |
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS MONTGOMERY COUNTY
Newell, J., delivered the opinion of the court in which Keller, P.J., and Hervey, Richardson, Keel, Walker, Slaughter and McClure, JJ., joined. Slaughter, J., filed a concurring opinion. Yeary, J., concurred with note.
If a defendant confesses to the offense of indecency with a child against a child who can't communicate and the conduct resulted in no apparent injury, should a conviction be overturned because there is no evidence of the crime itself besides the defendant's confession? No. When sufficient evidence exists in the record to support the conviction for a sexual offense with no perceptible harm against a pre-verbal child victim and a defendant's confession is sufficiently corroborated, the failure to satisfy the corpus delicti rule should not bar conviction.
In this case, Appellant voluntarily confessed to his pastor and then later to his wife. In each confession, he admitted that he pushed aside a pre-verbal, seventeen-month-old infant's diaper and touched her genital region with his hands, mouth and penis. While the State corroborated the confessions by presenting details showing opportunity, motive, and a guilty conscience, the confessions themselves were the only evidence that the touching had occurred. Appellant challenges his dual convictions for indecency with a child by arguing that the State's evidence was not sufficient to satisfy the corpus delicti rule. The State responds that the evidence did satisfy the corpus delicti rule, but in the alternative, the State also argues that we should recognize an exception to the rule "for cases involving trustworthy admissions of sexual offenses committed against victims incapable of outcry."
We disagree with the State's first argument but agree with its second. Crimes against children, such as indecency with a child, often involve victims who lack the ability to relate the occurrence of the crime. In addition, indecency with a child is not an offense that would ordinarily cause perceptible harm. Failing to recognize an exception to the corpus deliciti rule under such circumstances would result in the inability to prosecute such crimes despite the existence of a voluntary, reliable, and corroborated confession. Because the record contains evidence sufficiently corroborating facts in the Appellant's confessions, the corpus delicti rule should not bar his convictions.
In September of 2016, Appellant reached out to Thad Jenks, his bishop, to "make a confession[.]" As a bishop, Jenks regularly provided spiritual advice to members of his congregation and sought to "help those who confess and are wanting spiritual advice to go through the repentance process and try to change who they are as people[.]" Jenks didn't know what Appellant wished to discuss prior to the meeting, but Appellant soon made clear that he wished to discuss "improper contact with a young child."
Appellant told Jenks that he and his wife watched two children over a weekend for their friends. While the children were at Appellant's home, "he took the young daughter into his bedroom and moved aside her - -pulled down a little bit her diaper and touched her in her genital region with his hands, with his tongue, and with his penis." Jenks knew of the child because her parents had previously gone to church in his ward.[1]The child was seventeen months old at the time of the confessed conduct.
After this meeting, Jenks asked the child's parents to come speak with him regarding Appellant's confession. The child's mother was very surprised to learn about the confession because she and her husband had been family friends with Appellant and his wife for many years. After the meeting, the parents contacted law enforcement to investigate.
Meanwhile, after his meeting with Bishop Jenks, Appellant voluntarily told his wife that he needed to talk to her about something that happened while he was watching the child in early August of 2016. During their conversation, he confessed that, "while they were here I touched [the child]'s genitals with my hand, my mouth, and my penis." Specifically, he said that he took the child to his bed in the master bedroom, left the door open, and touched the child with his penis, mouth, and hand. He admitted to reaching underneath the child's vagina and "using one of his fingers there," but he couldn't recall "how far it went in." He claimed that he ultimately stopped because he was interrupted by the foul smell of the diaper as he was using his mouth. Then, while "using his hand a little bit later," he realized that he was doing something very wrong. He admitted to doing all this while his wife was talking to their daughter on the back patio and he was inside watching the child alone.
Appellant initially attempted to justify his conduct by explaining that he was "curious whether it would give him an erection or not." He went on to point to his feelings of anger at perceived sexual and emotional neglect from his wife. According to Appellant, he resented his wife for going to lunch with her friends during the weekend and leaving him in charge of watching the children. Appellant blamed his wife for not putting shorts back on the child after changing her diaper and leaving her to run around in her diaper.
Appellant's wife remembered keeping the child in early August at a time consistent with Appellant's confession and remembered talking with her daughter outside on the back patio that weekend for fifteen to twenty minutes while Appellant watched the child inside. She specifically remembered both going to lunch with friends that weekend and leaving shorts off of the child because the available shorts were too constrictive. She also remembered Appellant "fasting a lot and [being] somewhat withdrawn" after the weekend. While Appellant's wife did not describe the exact relevance of fasting, she did note that it was unusual and signaled that "he was having a spiritual experience with God or something[.]"
At the urging of law enforcement, specifically Sergeant Jody Armstrong of the Montgomery County Sheriff's Office, the child's parents took her for an exam at Children's Safe Harbor, a multi-disciplinary group designed to be a "one-stop shop to make things easier for the families and to collect information on" crimes against children. At Children's Safe Harbor, the child was examined by Jamie Ferrell, a forensic medical examiner and clinical director of forensic nursing services for the Memorial Hermann Healthcare system.
Children's Safe Harbor required children to be three years old or older before they could conduct an interview because a child younger than three is considered "pre-verbal." Ferrell noted that the child was pre-verbal at seventeen months old and that the child's primary mode of communication was "pointing" and "making unidentifiable sounds." Although the child "knew a few words," she did not speak in sentences and was never able to relay information about the incident to either Ferrell or her mother. Because the infant was pre-verbal, Ferrell asked the child's mother basic intake questions for the exam. The child's mother noted that she and her husband left their kids with Appellant and his wife and, after this, Appellant told his Bishop that "he was going to change [the child]'s diaper and he touched her over the diaper with his tongue and hands and penis, but it was all done over at [sic] the diaper."[2]
As expected, Ferrell's examination provided no evidence of a sexual assault.[3] According to Ferrell, evidence collection is usually only done within 96 hours of an assault and the exam was scheduled "some time from when it had happened." Because of the time lapse and the age of the child, Ferrell was unable to determine whether there was "any kind of penetration or ejaculation." She also noted no body surface injuries or injuries to the child's genital areas. Ferrell explained that she would not have anticipated finding injuries because the assault was described as "touching to the area" and "rubbing to the area," which would not realistically cause injury. Finally, Ferrell noted that even if there had been penetration she would not expect there to be apparent injury because "this part of the body is very similar to the cells on the inside of your cheek, and it heals very, very fast."
The State charged Appellant with aggravated sexual assault of a child and indecency with a child.[4] At the trial, Sergeant Armstrong, Bishop Jenks, Appellant's wife, Ferrell, and the child's mother testified to Appellant's double confessions, their memories from the surrounding time period and the results of the medical examinations. At the close of the State's case, Appellant moved for a directed verdict and argued that the State had failed to show independent evidence of the crime under the corpus delicti doctrine because it failed to present independent evidence of the sexual touching other than the Appellant's confessions. The Appellant specifically pointed to the lack of eyewitness testimony, DNA evidence, injury, or outcry from the victim. The State argued that the Appellant's confessions were sufficiently corroborated by pointing out details within the confession, such as the date and the child's lack of shorts, that lined up with testimony from other witnesses. After listening to the arguments, the trial court denied Appellant's motion.[5]
The jury found Appellant not guilty of aggravated sexual assault returning instead a verdict of guilty on the...
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