Weaver v. State
| Decision Date | 28 July 2022 |
| Docket Number | 02-21-00081-CR |
| Parties | Joseph Weaver, Appellant v. The State of Texas |
| Court | Texas Court of Appeals |
Joseph Weaver, Appellant
v.
The State of Texas
No. 02-21-00081-CR
Court of Appeals of Texas, Second District, Fort Worth
July 28, 2022
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 462nd District Court Denton County, Texas Trial Court No. F21-1227-462
Before Sudderth, C.J.; Kerr, J.; and Lee Gabriel (Senior Justice, Retired, Sitting by Assignment)
MEMORANDUM OPINION
Lee Gabriel Justice
Appellant Joseph Weaver appeals from his convictions for one count of indecency with a child by contact and three counts of sexual assault of a child and from his cumulative sentence of forty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. §§ 12.32-.33, 21.11(a)(1), 22.011(a). In his first of four issues, Weaver contends that the jury charge on punishment was erroneous. In his second and third issues, he argues that the evidence was insufficient to support his convictions in count one and count three of the indictment. In his fourth issue, Weaver argues that the trial court's decision to cumulate his sentences violated his right to have the jury assess his punishment and that the trial court's cumulated sentences are grossly disproportionate to the sentences assessed by the jury. We affirm.
I. BACKGROUND
Weaver and Lisa[1] met on the first day of their senior year in high school after Weaver moved with his family to North Texas from Houston. Weaver and Lisa began dating, and Lisa became pregnant. When Weaver's family decided to move away from the area, he made the decision to move with them. Lisa gave birth to Kelsey when she lived with her mother, and due to all the circumstances, Kelsey
formed an extremely close bond to her grandparents.[2] Kelsey considers them to be a second set of parents, and she refers to them as Monnie and Dae.
When Kelsey was approximately five years old, Weaver and Lisa reconnected, and he moved back to the Dallas area. Soon thereafter, he and Lisa moved in together and ultimately married. After they married, one more daughter-Amber- and two sons were born to Lisa and Weaver. The family lived in a house that they had purchased on Chestnut Street in Little Elm, Texas. Despite the reunification of Kelsey's parents, she still spent most weekends with Monnie or Dae.
Kelsey described how, when she was about twelve, she became increasingly uncomfortable around Weaver due to his comments and actions towards her. She testified at trial that the first time she remembered something inappropriate actually occurring was after one of her softball games. When she and Weaver returned to the Chestnut Street house, she mentioned that she felt sore from the game. Weaver told her that he would give her a back rub, which he had done before. However, this time, he instructed her to remove her shirt and to lie down on the couch. She testified that she felt uncomfortable with his instruction and instead went to her room.
Kelsey described multiple instances of inappropriate touching that she characterized as "gradual" that made her uncomfortable.[3] She testified that when she was sitting at a desk playing a computer video game, Weaver came into the room to watch her play, and as they chatted, he started rubbing her back. She detailed how he "slowly worked his way down towards [her] breasts" with his hands over her clothes and began "massaging." She testified that on this occasion, she did not know why he stopped.[4]
Kelsey also testified that Weaver touched her genitals and penetrated her sexual organ on multiple occasions. One such act that she described occurred when she was playing a video game on a large sectional couch in the living room of the home. Kelsey explained that Lisa was in the kitchen preparing dinner and had her back to the living area while cooking at the stove. Kelsey described the couch as deep and explained how Weaver came over the back of the couch to sit behind her with his legs on either side of her. Kelsey said that she was wearing athletic shorts and a t-shirt but was not wearing underwear. She recounted how Weaver had reached around to put
his hand under her shorts and had massaged her genitals. She said that his hands stayed on the outside of her vagina "that time." She also testified that Weaver had stopped and had "quickly withdr[awn]" his hand when Lisa said that dinner was ready. Kelsey then related additional instances when Weaver had touched her genitals or had penetrated her sexual organ. She described an occasion in the computer room that was similar in how he had massaged her genitals but was memorable because her mother was not home when it began. She related that when she and Weaver had heard Lisa come in the house, he pulled his hand away. She explained that his hand was near her genitals, and when specifically asked, Kelsey stated that she believed his hand had been on the inside of her vagina.[5]
When asked how many times Weaver had followed the pattern of giving a massage to touching her vagina to penetrating her vagina, Kelsey answered, "At least five, but I believe more." She described another repetition of this pattern that had occurred in her bedroom:
[PROSECUTOR]: What happened first in that time?
[KELSEY]: It was very similar to the other times.
[PROSECUTOR]: Okay. Can you tell me how it started?
[KELSEY]: With a massage.
[PROSECUTOR]: Okay. And then what happened next?
[KELSEY]: He slowly worked his way down.
[PROSECUTOR]: How far down did he work his way?
[KELSEY]: To my genitals. I believe he placed a finger inside.
[PROSECUTOR]: Inside what?
[KELSEY]: Inside my vagina.[6]
Kelsey testified about the last time that Weaver had committed an offense against her, stating that it had occurred in 2015 in her bedroom in the home on Chestnut Street. She described the layout of her bedroom as containing a loft bed with a desk beneath it. She stated that she was playing a video game at that desk when Weaver came into her room and pulled a stool diagonally behind her. Weaver began by massaging her shoulders and worked his way down to massaging her breasts under her clothes. He then began rubbing the outside of her vagina before inserting his hand inside her vagina and rubbing for "what felt like forever." Kelsey related that at one point, she had pulled his hand away and had made a "mmm" sound to try to stop him; although he stopped for a brief time, he then continued. She explained how she then had frozen because "[i]t was the first time that [it] really just hit [her] as what it was."[7]
Kelsey testified that after this last occurrence of sexual abuse, she avoided Weaver and told Dae that she was "uncomfortable" living at her home and wanted to leave. Although she shared no details of why she was "uncomfortable," Kelsey moved out of the Chestnut Street house in 2015 and never lived with Weaver again. Lisa was informed of Kelsey's disclosure to Dae, and Lisa confronted Weaver. Weaver acknowledged giving massages to Kelsey and moved out of the home. Kelsey continued to live primarily with one of her grandparents.
Kelsey never shared the details of Weaver's sexual abuse of her with her family. She testified that she did not talk about the sexual offenses against her because she was scared. Kelsey finally reported the offenses to the police in 2020. She testified that the timing of her report was due to the fact that she was out of her depressive state and was at a good place in her life and due, in small part, to the fact that Lisa had filed for divorce from Weaver. Kelsey testified that she had three younger siblings who could be subjected to access to Weaver, without their mother present, and that this caused her concern.
Kelsey testified that she kept a journal from 2013 to 2015 chronicling many events during those years. The journal included passages describing her dislike of Weaver and how she feared him and what he would do if she reported him. Kelsey also created a chart specifying certain occurrences of sexual abuse that she added to contemporaneously. She testified that she did not include every instance of sexual
abuse because she did not want to think about it. Kelsey further explained that she quit noting instances of sexual abuse on the chart in 2013 because she had given up.
Weaver was charged in a single indictment with one count of indecency with a child by contact and three counts of sexual assault of a child. A jury convicted him on all four counts and affirmatively answered special issues statutorily enhancing his sexual-assault convictions from second-degree felonies to a first-degree felonies. See id. § 22.011(f).
In the punishment phase of the trial, Lisa testified that she had allowed Weaver to return to the marital home in 2018. At that time, Kelsey was still living with one of her grandparents. Lisa explained that after Weaver had moved back in, there was a police investigation concerning Weaver's younger daughter, Amber. The State presented evidence that Weaver had pled guilty on February 20, 2020, to Class A misdemeanor assault of his younger daughter; the offense was a lesser-included offense of a felony indictment. Weaver was placed on community supervision with deferred adjudication. In addition, a protective order was granted that prohibited Weaver from having any contact with Amber for ten years. Lisa testified that the offense against Amber had a profound impact on her; the offense made it impossible for her to talk about what had occurred.[8] Indeed, Amber had to be hospitalized due
to suicidal ideations. Months later, Lisa applied for and received a protective order for both of her sons. In October 2020, the State filed a motion to proceed with an adjudication of guilt in Weaver's case involving Amber, alleging that Weaver had violated a protective order.
Also in punishment, Kelsey described for the jury the impact...
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