Southard v. State
| Docket Number | 13-22-00271-CR |
| Decision Date | 25 May 2023 |
| Parties | JOHN BING SOUTHARD A/K/A JOHN SOUTHARD, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the 36th District Court of Aransas County, Texas.
Before Justices Benavides, Longoria, and Tijerina
Appellant John Bing Southard a/k/a John Southard was convicted of sexual assault of a child, a second-degree felony. See Tex. Penal Code Ann. § 22.011(a)(2)(D). Appellant was sentenced to fifteen years' incarceration. By two issues, appellant contends that (1) the evidence is insufficient, and (2) his trial counsel rendered ineffective assistance. We affirm.
By his first issue, appellant contends that the evidence is insufficient to support the jury's verdict. Specifically appellant argues that although the child complainant "testified that the contact occurred," "the evidence conclusively establishes reasonable doubt that the contact occurred before [the complainant], D.W.[,] turned 17 years of age." Appellant states, Appellant does not challenge the sufficiency of the evidence as it pertains to the other elements of the offense.
The State charged appellant with the offense of sexual assault of a child, D.W.[1]See id. The State accused appellant of using his sexual organ to make contact with D.W.'s anus when D.W. was under the age of seventeen. See id.
At trial, D.W. testified that he began working for appellant approximately two weeks after moving to Taylor Oaks RV Park in July 2016. D.W. was born on November 12, 1999; thus, D.W. was sixteen years old when he started working for appellant. D.W. stated that he was tasked with mowing, cleaning, and painting. D.W. said that appellant "started paying [him] if he worked naked for him." The State asked D.W. to explain. D.W. stated, According to D.W., appellant watched him work naked while appellant sat down smoking a cigarette and drinking beer.[2]D.W. said that the situation "just started getting weird[er] and weirder."[3] The State asked D.W. to elaborate. D.W. stated that he meant that eventually, appellant asked D.W. to give him massages while both D.W. and appellant were naked and "physical stuff" happened between the two.
D.W. said that the massages occurred when he was "around 15 to 16 years old."[4]The State asked D.W. to explain what he meant when he stated that the massages would lead to "touching and stuff like that." D.W. said, "Like, touching his penis and doing, like, you know, anal and stuff like that."[5] D.W. clarified that by "anal" he meant that appellant used his penis to penetrate D.W.'s anus, which D.W. described as painful. D.W. testified that the anal penetration occurred "[a] couple of times." The State asked, "[H]ow much time do you think passed between you starting to work for [appellant] and [appellant] putting his penis on your anal [sic]?" D.W. responded "After a few weeks of working with him."
D.W. told his father on June 15, 2017[6], that appellant had put his penis in D.W.'s mouth. D.W.'s father testified that D.W. was inconsolable on June 15, 2017. D.W.'s father said that he asked D.W. to tell him what had happened. According to D.W.'s father, D.W. said that appellant had been having oral and anal sex with D.W. and "it started shortly after [the pair] moved down here [Rockport, Texas] in [July] 2016."[7] D.W. told his father that he did not initially tell him about the abuse because appellant had mentioned that he is "a veteran and that he has had dreams of killing people." D.W. and his father then walked to the police station where D.W. made a police report. D.W.'s father took D.W. to the local children's hospital to be examined by a sexual assault nurse examiner.[8]
On redirect examination, the State asked D.W.'s father if he remembered telling an officer that D.W. "said the sexual abuse started when he was 16?" D.W.'s father replied,
In reviewing the sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). Direct and circumstantial evidence are equally probative. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The factfinder is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in favor of the judgment. Id.
We measure the sufficiency of the evidence in reference to the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge [is] one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d at 240). Under the Texas Penal Code, a person commits the offense of sexual assault of a child, as charged in this case, if the person intentionally or knowingly causes the anus of a child, who was then and there younger than 17 years of age, to make contact with the defendant's sexual organ. Tex. Penal Code Ann. § 22.011(a)(2)(D). A "child" is defined as "a person younger than 17 years of age." See id. § 22.011(c)(1).
Although appellant acknowledges that D.W. testified that "he was around 15 to 16 years old when the allegations occurred," and that "the anal contact" began "after a few weeks of working" for appellant, appellant contends that other evidence shows otherwise. Appellant states that D.W. is unable to give a timeline of events, and D.W.'s testimony appeared to imply that the anal contact happened after a series of other inappropriate behaviors occurred; thus, according to appellant, the evidence leads to a reasonable doubt that D.W. was under the age of seventeen when appellant contacted D.W.'s anus with his penis.
These contentions attack the credibility of D.W.'s testimony, not its sufficiency. See Criff v. State, 438 S.W.3d 134, 137 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) (). Our standard of review requires that we defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319 (1979). We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
In addition, as the sole judge of the weight and credibility of the evidence, the jury is free to believe or disbelieve the testimony of all witnesses and to accept or reject any or all the defensive evidence. Braughton v. State, 569 S.W.3d 592, 608-09 (Tex. Crim. App. 2018); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (). Under our standard of review, we presume that the jury resolved conflicting inferences in favor of the verdict, and we defer to its determination of the evidentiary weight and witness credibility. Braughton, 569 S.W.3d at 608; see Criff, 438 S.W.3d at 136-37.
D.W. testified that appellant began penetrating his anus with his penis "[a]fter a few weeks of working with" appellant. D.W. started working with appellant when he was sixteen years old in July 2016 and his birthday was four months later in November. In addition, D.W.'s father testified that D.W. told him that that the sexual abuse started when he was sixteen years old, and the anal abuse began soon after the pair moved to Rockport in early July 2016. From this evidence, the jury could have reasonably believed that D.W. was sixteen years old when appellant began penetrating D.W.'s anus with his penis.[9]Accordingly, considering all the evidence in the light most favorable to the verdict, we conclude that a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences drawn from that evidence. See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898-99.
By his second issue, appellant contends that his trial counsel rendered ineffective assistance for myriad of reasons. Specifically, appellant complains by five sub-issues that his trial counsel failed to: (1) "object to witness exclusion and preserve the issue for appellant review" (2) "object to ...
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