Simon v. State

• Decision Date: 10 December 1987
• Docket Number: No. 01-85-00512-CR,01-85-00512-CR
• Parties: Angela H. SIMON and Armando Simon, Appellants, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 318

743 S.W.2d 318

Angela H. SIMON and Armando Simon, Appellants, v. The STATE of Texas, Appellee.

No. 01-85-00512-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 10, 1987.

Buddy Stevens, Robert T. Rice, Angleton, for appellants.

Jim Maple, Brazoria County Dist. Atty., Jim Turner, Brazoria County Asst. Dist. Atty., Angleton, for appellee.

Before EVANS, C.J., and LEVY and DUNN, JJ.

EVANS, Chief Justice.

A jury convicted appellants, Armando Simon and his wife Angela H. Simon, of sexual assault of a child. The jury assessed Armando Simon's punishment at nine years confinement and Angela Simon's punishment at three years confinement, probated for five years. Both appellants bring this appeal from their respective convictions. We affirm both convictions.

Armando Simon does not challenge the sufficiency of the evidence to support his conviction. But Angela Simon does contest the sufficiency of the evidence, arguing that there is insufficient evidence to show that she, while "acting with intent to promote or assist the commission of the offense," solicited, encouraged, directed, aided, or attempted to aid either Armando or the complainant to commit the offense. See Tex.Penal Code Ann. sec. 7.02(a)(2) (Vernon 1974).

Angela Simon first contends that there is insufficient evidence to prove that she committed any "acts" of culpable conduct and second, that there is insufficient evidence, under the law of parties, to show that culpable intent attached to the proscribed act at the time the act was performed. In support of these arguments, she cites Herring v. State, 659 S.W.2d 391, 392 (Tex.Crim.App.1983), which involved a conviction for public lewdness based upon the defendant's "act" in allowing his genitals to be touched by complainant. In that case, the Court of Criminal Appeals reversed the conviction, holding that the State failed to meet its statutory obligation to prove an affirmative act of touching. See Tex.Penal Code Ann. sec. 6.01 (Vernon 1974 and Supp.1987).

In considering the sufficiency of the evidence, we are required to view the record in the light most favorable to the verdict, and we must sustain the conviction if we conclude that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Sutherlin v State, 682 S.W.2d 546, 549 (Tex.Crim.App.1984). Applying this standard of review, we hold that the jury could reasonably have decided beyond a reasonable doubt that Angela Simon actively encouraged sexual contact between the complainant and the appellant's husband, Armando Simon.

Appellants resided in Angleton, Texas, where Armando Simon was employed as a psychologist with the Texas Department of Corrections. In February 1983, the complainant, then 15 years old, was introduced to the Simons by mutual friends who shared an interest in a game called "Dungeons and Dragons." The complainant thereafter often babysat at the Simons' and joined the Simons' social circle, whose members ranged in age from middle teens to early twenties, except Armando, who was in his early thirties. The group gathered frequently to play "Dungeons and Dragons" and other games, and also met to go swimming, crabbing, and on shopping trips. In May 1983, some of the group, on several occasions, attended "The Rocky Horror Picture Show" movie, a satire on horror movies shown at Houston theaters at midnight on weekends. When the group went swimming, a certain amount of "horseplay" generally took place in which the males, including Armando, threatened removal of the females' bathing suit tops and tube tops. In the summer of 1983, the Simons moved to another apartment in Angleton, and in the course of that move, some of the family photograph albums, which contained nude pictures, were displayed to the complainant and another member of the group. After that time, Armando's attentions to the complainant began to take on a more distinctly sexual character, starting with kissing and petting. About that same time, Angela Simon told the complainant that she, Angela, had an "open marriage" and that she wished to give Armando a "gift" of a virgin. She also commented about Armando's sexual activities and prowess.

There was testimony that Angela engaged in a continuing course of conversation with the complainant involving sexuality. On one occasion, after the trio engaged in a "strip blackjack" game, Angela openly invited the complainant to engage in sexual contact with Armando, placed the complainant's hand on Armando's penis, and then left the room. After Angela left the room, Armando continued to fondle the complainant until he reached a sexual climax. On a subsequent occasion, Armando performed cunnilingus on the complainant while the two were in an automobile, and during that episode, Armando was unable to achieve an erection. After returning to the Simons' apartment, Angela massaged Armando to an erection, and invited the complainant to have intercourse with him. When the complainant refused this invitation, the two Simons left the room and engaged in an argument. Angela then returned and informed the complainant that she would have to make a decision about having intercourse with Armando.

About two months later, in November 1983, Armando and the complainant engaged in their first act of sexual intercourse. Thereafter, Armando and the complainant engaged in intercourse on some 17 to 20 occasions at various locations. The last occasion was on June 6, 1984, the date of the offense upon which both convictions are based. Angela Simon was not present on any of the occasions when Armando had intercourse with the complainant.

There was testimony that tended to show that Angela Simon continuously discussed sexual activities with the complainant, particularly in respect to the complainant's sexual involvement with Armando Simon, and that Angela actively encouraged the complainant to have a sexual relationship with Armando. There was also testimony from another witness, an acquaintance of the Simons, that the Simons had admitted Armando's sexual relationship with the complainant, and that Angela later told the witness that the complainant was a "gift" to Armando.

Although Angela Simon denied any knowledge of an affair between her husband and the complainant and denied that the three had participated in the sexual activities described by the complainant, the jury was not bound to accept her testimony. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence is sufficient to prove affirmative conduct on the part of Angela Simon that constitutes a culpable act of aiding in the commission of the offense. Moreover, the evidence is sufficient to support the inference of her participation in the offense as a party. See Freeman v. State, 654 S.W.2d 450, 453-54 (Tex.Crim.App.1983); Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.Crim.App.1976). We also conclude that the testimony supports an inference that the culpable intent was attached to the proscribed act at the time the conduct was performed. See Ely v. State, 582 S.W.2d 416, 420 (Tex.Crim.App.1979); Tex.Penal Code Ann. sec. 7.02(a)(2).

Tex.Penal Code Ann. sec. 6.03(a) (Vernon 1974) provides:

A person acts intentionally, or with intent, with respect to the nature of his conduct or as a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Although Angela Simon was not present on the date of the act of the sexual intercourse for which both appellants were found guilty, the testimony supports an inference that the particular act of intercourse occurred, as did the preceding series of sexual contact, as a result of her intentional course of conduct and her conscious objective and desire to have the complainant engage in sexual intercourse with her husband. Thus, the jury was justified in concluding that Angela Simon had culpable intent that attached to the act of intercourse for which she and her husband were charged with the offense of sexual assault of a child.

We accordingly overrule points of error 25 and 26 of appellant Angela Simon.

We next consider the contentions advanced by both appellants, Armando and Angela Simon, that the trial court abused its discretion in denying their motions for severance.

Tex.Code Crim.P. art. 36.09 (Vernon 1981) provides, insofar as applicable here, that when two or more defendants have been jointly indicted for the same offense or an offense growing out of the same transaction, they may, in the discretion of the court, be tried jointly, and that either defendant may testify for the other or on behalf of the State, provided, "that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court ... that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other...." (Emphasis added.)

Under Armando Simon's points of error nine and ten, he contends that the trial court abused its discretion in denying his motion to sever, claiming that his defense was so antagonistic and prejudicial to Angela Simon's defense that a severance should have been granted. Particularly, he complains that "as the evidence developed," Angela Simon felt it necessary to take the stand and produce her diary, which had been excluded by the court in a pretrial suppression hearing. He argues that because the hearsay statements recorded in her diary tended to incriminate him, this made his wife a witness against him. He asserts that the trial court was aware, before the trial even started, that the diary might be an issue in the case and that the parties had asked to be tried separately, both before and during trial.

Angela Simon's points of error two, seven, eight, and sixteen similarly contend that the trial court abused its discretion in overruling her motion to sever, arguing that certain...