Walker v. State
| Decision Date | 16 November 2017 |
| Docket Number | NO. 02-16-00139-CR,02-16-00139-CR |
| Parties | DONTRAY WALKER APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
MEMORANDUM OPINION1In seven points, Appellant Dontray Walker appeals his convictions for sexual assault of a child and indecency with a child by contact. See Tex. Penal Code Ann. §§ 21.11, 22.011 (West Supp. 2017). We affirm.
Background
In 2012, Walker was dating Abby's2 mother, Laura, and was living in an Arlington apartment with Laura, Abby, and three of Laura's other children. At 15 years old,3 Abby was the oldest of the four children living in the apartment, and because Laura worked long hours, Abby took on a mothering role to her siblings so that Laura could catch up on sleep when she was home. Although he was unemployed at the time, Walker assisted with family expenses through the disability payments he received from the Veteran's Administration.
According to Abby, in late November 2012, Walker confronted her when he found out she was dating someone and he told her that he "needed to check . . . if something didn't look right" and that Abby "need[ed] to know how [her] body look[ed]." Abby testified at trial that Walker directed her to take off her shorts, which she did, and then he moved her underwear aside, "opened up," and "looked around" her vaginal area.
Abby also described a second incident to the jury that took place a few days later, on December 1. In that incident, Walker returned from taking Laura to work early in the morning, went into Abby's bedroom, picked her up from her bed, and carried her into Laura's empty bedroom. Abby recalled that Walkerdirected her to take some allergy medicine, so she did, and then she fell back to sleep. In her testimony, Abby described waking up at some point later to a sensation of pressure in her "chee-chee"4 area and believed that it was caused by something penetrating her sexual organ. Then, the room "slowly disappeared" and Abby drifted back to sleep until a bit later when she woke up to the feeling of her shorts being pulled up. Although she remembered seeing Walker walk into the bathroom attached to the room, she testified that she could not hear anything and that she fell "right back to sleep again." Finally, at 9:00 a.m., Abby woke up fully. When she went to the bathroom to take a bath that morning, she noticed black pubic hairs in her underwear.
Later that day, Abby told her friend what she could recall about the incident, and that evening, her friend's parents reported the abuse to the police. Officer Chad Haning of the Arlington Police Department (APD) was one of the officers that arrived at Abby's apartment around 1:00 a.m. that night and encountered what he described as a party of nine to 15 people, mostly males, who were intoxicated and aggressive about the police presence. Officer Haning found Abby in her room, where she was sleeping, and Abby told Officer Haning what had happened the previous morning. Then, at Officer Haning's direction, Abby collected the clothes she had been wearing at the time of the assault—a t-shirt, shorts, and underwear—and gave them to Officer Haning; he also collectedthe sheets and comforter from Laura's bed. While he was collecting the bedding, Officer Haning noticed a bottle of Hydrocodone pills labeled with Laura's name on one of the nightstands. Officer Haning then escorted Abby and Laura to Cook Children's Medical Center (Cook's) for a sexual assault examination.
Abby and Laura arrived at Cook's around 4:00 in the morning on December 2 and each met with Dr. Jayme Coffman, a child abuse pediatrician and the medical director of the CARE team at Cook's. Dr. Coffman interviewed Abby and Laura separately and also performed a physical examination of Abby; she described both interviews and the examination for the jury at trial.
As part of her interview of Abby, Dr. Coffman learned about Abby's medical and sexual history. Abby was a sexually active teenager and reported last having sex with her boyfriend a week before. Abby also informed Dr. Coffman that Laura's former fiancé—who had since passed away—had sexually abused Abby by trying to make her perform acts of oral sex. Abby also described her struggle with depression and self-mutilation, and Dr. Coffman noted the presence of multiple scars on one of Abby's forearms and both of her thighs that were the result of her cutting herself when she was angry or sad, a habit that began in 2008 or 2009. Dr. Coffman testified that, in her experience, it was not uncommon for children who had been sexually abused to self-mutilate as a way to cope with their feelings surrounding the trauma, which sometimes manifested in forms of depression or posttraumatic stress. Indeed, Abby testifiedat trial that she had suffered from depression since she was young and "[had] always had mental breakdowns."
Dr. Coffman concluded that Abby had lost consciousness at some point because although Abby knew something had happened, "she had no specific memory of any specific events" because "[s]he couldn't wake up enough to remember."
In addition to performing a general, head-to-toe physical examination, Dr. Coffman examined Abby's genitals for signs of abuse and collected DNAswabs and a urine sample for testing. Dr. Coffman concluded that her findings from the examination, which included some tears and evidence of healed injuries to Abby's genitals, were consistent with suspected sexual abuse.
Dr. Coffman was concerned when Laura seemed to question whether Abby was telling the truth, and she felt that Laura did not seem protective of Abby. Dr. Coffman's concerns were heightened when she learned that Laura planned to return to the apartment and that Walker was still living there, but Laura and Abby agreed that Abby would stay with a family friend once they left Cook's.
According to Abby, when she and Laura left Cook's just before 7:00 a.m., Laura drove her to a park, where Abby initially told Laura what had happened between her and Walker. But by the end of the conversation, Abby told Laura that none of it had actually happened. At trial, she explained that she had felt Laura did not believe her.
Abby stayed with an aunt for a few days after that, but then she returned to the Arlington apartment, where Walker was still living. Four days after the incident, on December 6, 2012, Laura drove Abby to the Alliance for Children, where Joy Hallum, a forensic interviewer, interviewed her for about an hour.
It was during this interview with Hallum that Abby first publicly recanted her allegations against Walker by telling Hallum that she had made it all up because she wanted to get Walker out of their home and did not like his assumption of afatherly role to her. At trial, Abby testified that she had only recanted out of concern for her mother and her siblings. Abby testified that she had been afraid of the possibility that she and her siblings might be split up, or that her relationships with them might be damaged, and that she did not want to cause Laura to worry about them.
Hallum, who was skeptical of Abby's recantation, explained at trial that a child is more susceptible to recanting allegations of abuse if she lives with her abuser because "the child is going to be told or [made to feel] that they need to take that statement back." Hallum, like Dr. Coffman, had concerns about Abby returning to an apartment where Walker was living, although she admitted during cross-examination that she did not know if Walker was living in the same apartment with Abby at the time of the interview.
Detective Garth Savage was assigned to the case and continued to investigate it despite Abby's recantation during the forensic interview. He requested DNA testing of the clothing Abby had been wearing at the time of the December 1 incident, DNA testing of the swabs taken by Dr. Coffman, and results of a toxicology test of Abby's urine. Although the results of the swab testing came back negative for the presence of semen, sperm was found on the shorts Abby was wearing on December 1 that matched Walker's DNA profile. Additionally, the results of the urine test were positive for Hydrocodone, indicating that she had taken the drug within the three days before the urinesample was taken. According to the toxicologist who testified at trial regarding the urine test results, Hydrocodone can cause drowsiness and loss of muscle control.
Detective Savage also interviewed Laura as part of his investigation,...
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