Le v. State, 05-16-01324-CR
| Decision Date | 30 April 2018 |
| Docket Number | No. 05-16-01324-CR,05-16-01324-CR |
| Parties | UNG T. LE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
Ung T. Le appeals the trial court's final judgment convicting him of continuous sexual abuse of child younger than fourteen years of age. The jury found Le guilty and assessed his punishment at thirty years of imprisonment. Le raises seven issues on appeal arguing: (1) the evidence is insufficient to support his conviction; (2) the trial court erred when it overruled his objection to the designation of the forensic interviewer as the outcry witness; (3) the trial court erred when it denied his motion for mistrial; (4) the trial court erred when it overruled his request for a limiting instruction for the jury to disregard evidence that was subject to a motion in limine; (5) the trial court erred when it overruled his objection to the admission of the video-recorded forensic interview; (6) the trial court erred when it overruled his objection to inclusion of lesser-included offenses in the jury charge; and (7) the trial court erred when it overruled his objection to the jury charge because it did not require the State to elect the manner and means of the offense it pursued. We conclude the evidence is sufficient to support Le's conviction and the trial court did not err. Also, we modify the judgment to reflect the correct statute. The trial court's final judgment is affirmed as modified.
On March 1, 2013, T.L., who was thirteen years old, approached Rebecca Brown, a counselor at T.L.'s high school. Initially, T.L. complained that her grandfather was mean and would hit her on the back with a back scratcher. Then, T.L. stated that Le, her father, was also mean to her, would come home drunk in the early morning hours, and would yell at her. However, when T.L. stated that Le would tell her that "it would be quick" and "one time it hurt so bad, she couldn't walk the next day," Brown realized that T.L. was telling her something more. Brown asked if T.L.'s father had been sexually abusing her and if there had been penetration. T.L. responded affirmatively and stated it had been going on since she was eight years old. T.L. also told Brown that her mother took pain medications and was suicidal. Brown contacted the appropriate school officials, who notified the police.
T.L. was taken to the Dallas Children's Advocacy Center where she spoke with a forensic interviewer, Patricia Guardiola, for over an hour. During that interview, T.L. made an outcry of sexual abuse, stating she had been raped by Le for the past five years. She stated it began when she was eight years old and the last incident of sexual assault had occurred two days earlier. T.L. described Le penetrating her vagina, anus, and mouth with his penis, T.L. being made to put her hand on Le's penis, and Le putting his mouth on her vagina. She stated that these incidents occurred frequently, about every other night. T.L. provided Guardiola with sensory details of the sexual assaults, including Le "preparing" her by "licking her vagina," her physical pain during vaginal penetration, feeling like she was "tearing apart" during anal penetration, how it was morepainful when Le used a condom, what Le's penis tasted like, and described seeing semen come out of Le's penis. T.L. also described an incident when Le used her bed comforter, which had illustrations of leaves on it, to clean his semen off of her body. T.L. told Guardiola that she was afraid to tell anyone because she was scared for her safety and she was afraid her family would disown her. T.L. stated that her mother would be asleep in the living room, at work, or away from the apartment when the sexual assaults occurred. One incident T.L. described occurred at her grandparents' apartment. Also, T.L. described an incident when her mother walked into T.L.'s bedroom, found Le naked in T.L.'s bed, and demanded to know what was going on. T.L. said that Le answered, "Oh, I'm licking my child's vagina," and, in response, her mother just turned around and walked out.
Seven days after the last reported incident of sexual assault, T.L. was examined by Sandra Onyinanya, a pediatric nurse practitioner and sexual assault nurse examiner (SANE). Onyinanya did not observe any injuries or abnormalities to T.L.'s genital or anal areas. However, she stated that 85-95% of all examinations are normal because the genital area is "made to heal really, really fast." Onyinanya did not do a rape kit because it had been longer than 96 hours since the last sexual assault.
Two or three weeks after T.L.'s forensic interview, Officer Johnsey Vann of the Dallas Police Department obtained a search warrant for the apartment where Le, T.L.'s mother, and T.L. lived. T.L.'s mother told the police that T.L.'s things were in the closet. The police seized a comforter with illustrations of leaves on it, a gold blanket, and a pillow sham from that closet. Forensic testing revealed the presence of seminal fluid and blood on the comforter and blanket. Le was determined to be the contributor of the DNA for the stain on the blanket and there were three possible contributors, including Le, for the stains on the comforter.
Le was indicted for continuous sexual abuse of a young child. During the jury trial, testimony was heard from several witnesses including T.L., who was seventeen years old at the time of the trial, and Guardiola, who was determined by the trial court to be the outcry witness. In addition to describing the sexual abuse, T.L. testified that she was living in foster care and her parents' natural rights to her had been terminated. The day after T.L.'s testimony concluded, Le moved for a mistrial, arguing T.L.'s testimony relating to the termination of her mother's and Le's parental rights violated a motion in limine, the prejudicial effect of that evidence outweighs its probative value, and, in the alternative, asked for a limiting instruction that all testimony related to the civil matter should be disregarded and not considered for any purpose. The trial court denied the motion. Also, T.L.'s mother and maternal grandmother testified for the defense. T.L.'s mother admitted to having attempted suicide and taking hydrocodone "in February." Further, T.L.'s mother testified that she divorced Le in 2005 and he did not live with her until they resumed their relationship in 2010, she did not see anything that "would be consistent with [Le] abusing [T.L.]," she did not find Le naked in T.L.'s bed, and she did not believe the allegations T.L.'s maternal grandmother testified that after her daughter's divorce from Le in 2005, T.L. lived with her grandparents, not her mother, and Le moved to Louisiana and Kansas before returning to Texas in 2010. She also stated that she did not believe the allegation, but if T.L. had said something to her, she would have protected her granddaughter. The jury found Le guilty and assessed his punishment at thirty years of imprisonment.
In his first issue on appeal, Le argues the evidence is insufficient to support his conviction. The State responds that the evidence showed that Le committed two or more sexual acts during a period of over thirty days.
When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); State v. Bolles, 541 S.W.3d 128, ___, 2017 WL 4675659, at *4 (Tex. Crim. App. 2017); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Bohannan v. State, No. PD-0347-15, 2017 WL 5622933, at *9 (Tex. Crim. App. Nov. 22, 2017); Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.
A person commits the offense of continuous sexual abuse of a child if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each act, he is seventeen years of age or older and the victim is a child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.). Although the exact dates of the abuse need not be proven, the offense requires proof that two or more acts of sexual abuse occurred during a period of thirty days or more. See PENAL § 21.02(d); Garner, 523 S.W.3d at 271. However, the statute does not require that the jury agree unanimously on the specific acts of sexual abuse the defendant committed or the exact dates when those acts were committed. See PENAL § 21.02(d).
The statute defines an "act of sexual abuse" as including indecency with a child under section 21.11(a)(1) and aggravated sexual assault under section 22.021. See PENAL § 21.02(c). Under section 21.11 the offense of indecency with a child occurs when a person engages in sexual contact with a child younger than seventeen years of age or causes the child to engage in sexual contact. See PENAL § 21.11 (West Supp. 2017). Section...
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