Tucker v. State

• Decision Date: 08 October 2014
• Docket Number: No. 04–12–00602–CR.,04–12–00602–CR.
• Citation: 456 S.W.3d 194
• Parties: Michael Jason TUCKER, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

456 S.W.3d 194

Michael Jason TUCKER, Appellant

v.The STATE of Texas, Appellee.

No. 04–12–00602–CR.

Court of Appeals of Texas, San Antonio.

Oct. 8, 2014.

Discretionary Review Refused June 3, 2015

Ross Elliott, Rogers & Moore, Boerne, TX, for Appellant.

Marc S. Ledet, Assistant District Attorney, Floresville, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

A jury found appellant, Michael Tucker, guilty on one count of aggravated sexual assault and two counts of indecency with a child. The jury assessed punishment at seventy-five years' confinement, seventy-five years' confinement, and twenty years' confinement respectively. On appeal, appellant challenges the sufficiency of the evidence, and he raises numerous issues alleging juror misconduct, error in the punishment phase jury charge, ineffective assistance of counsel, and improper jury argument. We affirm.

BACKGROUND

Appellant is the step-father of two girls, Ka and Ky, and the girls lived with appellant, their mother Sharla, and little sister CT.¹ Ka (who was eleven-years-old at the time of trial) testified appellant touched her with his hand in her private area, between her legs, where she peed. She said he touched her while they were in her room, and sometimes her sisters or mother would also be in the house. She said this happened two or three times a week, and the touching started when she was seven years old. Once appellant had her touch him over his clothes on his “private part.” Ka said appellant would also sometimes give her long kisses “like boyfriend/girlfriend kisses.” She also remembered that once, when she was about three years old, appellant put his “private part” in her mouth. She had thought she told her mother about this incident, but later remembered she told “Caroline from ChildSafe.”

Ka made the first outcry to her mother when her mother came into Ka's room and said “it's truth day ... has anybody been touching you or anything ... ?” Ka told her mother that appellant had been touching her. When asked what happened next, Ka said her mother's friend (“Crystal”) came to get her, and she stayed at the friend's house for a while. Ka never returned to her mother's house. Ka remembered going to ChildSafe where she was examined by a nurse. Ka said she did not speak to Ky about what happened.

On cross-examination, Ka read from a written statement she gave when she was nine years old. In her statement, she said she did not know what, if anything, her mother did when she told her mother that appellant had put his “private part” in her mouth. However, on the witness stand, Ka admitted she had not told her mother about this incident, but she thought she had “[a]nd when [she] was nine [she'd] just gone with what [she] thought of ....”

Ka's sister, Ky, testified next. Ky (who was fourteen years old at trial) testified that from when she was about five years old until she turned twelve years old, appellant would lick her vagina. When she was seven and nine years old, she called that part of her body her “tutu.” She said he would put his hands on her breasts. Ky said appellant also put his penis or his fingers inside her vagina. She said appellant would sometimes walk into the bathroom while she was showering. Appellant also would put her hands on his penis and tell her to rub it. Ky thought she was about six years old when she told her mother what was happening, and her mother did not believe her at first. When her mother said she did not believe her, Ky then told her mother that nothing happened because she was afraid appellant would do something. Ky said she told her mother again when she turned twelve years old because that is when she first realized that what appellant was doing was wrong. Ky said on this occasion, her mother had come into her room and asked her if anyone had ever touched her in an inappropriate way. Ky said “[w]e [then] went to school and we came home and we packed our stuff ... [and] went to Crystal's house.”

On cross-examination, Ky admitted she did not like appellant when he and her mother married, and she wanted her mother to get back together with her biological father. Ky also said she told Child Protective Services (“CPS”) that she did not tell her mother “nothing happened.” In her written statement, Ky stated everything started to happen with appellant when she was nine years old. In a second written statement given five days later, she said everything started when she was five years old. When asked what happened in the five days between the two statements, she explained “[t]his one says he's giving me a bath. And this one said he scared me.” When counsel asked her, “[s]o it's just different things that are happening,” she responded “yes.”

Norma Jordan, who at the time was a sergeant investigator with the Atascosa County Sheriff's Department, testified she met with both girls and their mother, interviewed them, and then referred them to ChildSafe where the girls would be interviewed on video and given a medical examination.

Ka and Ky's mother, Sharla, testified she met appellant when she was a clerk and he was a sergeant at the Dominguez State Jail. They married when she was pregnant with CT, and Ka was five years old and Ky was three years old. She said the first outcry came from Ka when she was six years old. Sharla said she was in the laundry room when Ka “just blurted out that [appellant] had licked her tutu and I completely lost composure and I didn't know what to do.” She said she told Ka they had to go to the police station “because I wanted to make sure that she was telling the truth.” She said she and appellant had just married, and Ka was lying and getting into trouble at school, “[s]o I thought maybe it was, you know, kind of like an outcry retaliating, I guess, because we got married.” She said Ka immediately changed her story to say “she was lying, you know, never mind, I'm just kidding.” Nevertheless, Sharla made a report to CPS, and, after the investigation, CPS said Ka showed no signs of sexual abuse and dismissed the case.

Sharla became suspicious later when Ky's grades began to decline. Sharla said one day Ky's school principal called to say Ky had been in a fight at school. After some time passed, when Ky was nine years old, Sharla again noticed “some things that were occurring” with both Ky and Ka. Sharla decided to ask Ky if anyone had ever inappropriately touched her, and Ky responded that appellant had. Sharla then called Crystal and asked her to pick up Ky so that she [Sharla] could talk to Ka. Sharla then asked Ka if appellant had ever inappropriately touched her, and Ka said “yeah, Mom, I told you when I was six years old....” Sharla then took Ka and CT to Crystal's house where she called CPS. The next day, Sharla went back to the house she shared with appellant and packed up all their belongings. They stayed at Crystal's house until the girls finished the school year, and then they moved in with Sharla's mother with whom they lived for about a year until Sharla and the girls moved into their present house.

Sharla said that, when she and appellant were married, the family lived in a mobile home first, but later moved to a large house that was purchased for them by appellant's mother. Sharla explained that appellant's mother bought lottery tickets, gave each of her grandchildren a ticket to scratch off, and the ticket scratched off by Ky won the grandmother $2 million. Sharla said that because Ky scratched off the winning ticket, appellant's mother used some of the money to buy the large house as a gift for appellant and his family. When asked by the prosecutor whether she had ever (1) asked for money to make the case go away, (2) put ideas into the girls' heads, or (3) specifically spoke to the girls about what happened other than the initial outcry; Sharla replied “No.”² Sharla denied asking for money for breast augmentation, liposuction, or a tummy tuck. She said she and appellant were still married and would not divorce until after the criminal trial. When asked whether she felt she was entitled to the house because Ky had the winning lottery ticket, Sharla denied thinking she was entitled to the house but she stated “when any of the other kids won $20, it was their $20. So why would it make a difference whether it was $2 million or $20.” She admitted she felt she was entitled to a portion of the winnings.

The next witness to testify was Ginger Jordan, the sexual assault nurse examiner (“the SANE nurse”) who was employed at ChildSafe and conducted the examination and evaluation of both Ka and Ky. Jordan said both girls were easy to speak with and cooperative. Ka told Jordan appellant first touched her when she was five years old, had just showered, and was lying on her bed “air drying” when appellant came into her room and started to touch her genitals. Ka told Jordan the last incident occurred when she was ten or eleven years old and appellant put his mouth on her genitals. She said this happened “a lot.” Ka did not mention digital penetration or that appellant touched her breasts. Jordan said the results of Ka's medical examination were all normal, but she did not find that unusual because tissue in the genital area heals very quickly. No rape kit was done because more than a year had passed since the last incident.

Ky told Jordan appellant touched her with his hands more than once and had asked her to rub him. Ky did not mention digital penetration or any genital-to-mouth touching. Jordan said the results of Ky's medical examination were all normal, but she did not find that unusual because in the majority of exams she has done in the past, most results are normal.

Next, Dr. Nancy Kellogg, a child abuse pediatrician, testified she was the medical director at ChildSafe when Ka and Ky were examined. Kellogg stated that most of the children seen at ChildSafe have a normal examination, with only about...