Wishert v. State
| Decision Date | 13 October 2022 |
| Docket Number | 11-21-00087-CR |
| Parties | SHAWN RAY WISHERT, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CR26987
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
Appellant Shawn Ray Wishert, was indicted for the offense of continuous sexual abuse of a young child. Tex. Penal Code Ann. § 21.02 (West Supp. 2021). The jury convicted Appellant of the charged offense. Appellant then pleaded "true" to a prior felony conviction for enhancement purposes, and the jury subsequently assessed his punishment at life imprisonment in the Institutional Division of Texas Department of Criminal Justice. The trial court sentenced Appellant accordingly.
In two issues, Appellant challenges his conviction and contends that (1) the State failed to present sufficient evidence that multiple instances of sexual abuse occurred over a duration of thirty days or longer, and (2) the trial court abused its discretion when it failed to conduct a nondiscretionary Rule 403 balancing analysis to determine whether evidence deemed admissible under Article 38.37 Section 2(b) of the Texas Code of Criminal Procedure was nevertheless subject to exclusion under Rule 403 of the Texas Rules of Evidence. See Tex. Code Crim. Proc. Ann. art. 38.37, §§ 2(a)(1)(B), (b), 2-a (West Supp. 2021); see also Tex. R. Evid. 403. We affirm.
The State presented several witnesses during its case in chief. Two of those witnesses testified regarding extraneous offenses or bad acts committed by Appellant. As such, their testimony was subject to the requirements of Article 38.37, Sections 2(a)(1)(B), (b), and 2-a.
The victim of the indicted offense, R.W., was born in 2003; she was seventeen when she testified at trial. R.W. testified that she recalled attending elementary school near the house where her father (Appellant) lived when she was in fifth grade; she was around thirteen or younger at the time. When she visited Appellant, sometimes she would spend the night.
R.W.'s best friend lived next door to Appellant, so she would go over to see her friend and stay the night at Appellant's house, although sometimes she also slept at her friend's house. She stated that she preferred to stay at her friend's house in order to avoid Appellant's molestation. When she slept at Appellant's house, R.W. would sleep in the living room on a leather couch. During those times, Appellant began touching her inappropriately. Sometimes, R.W. recalled, she was asleep when the touching began, and other times she was awake but pretended to be asleep because she was afraid of Appellant. She testified that Appellant would begin by touching her shoulders and breasts and then proceed to touching her vagina and inserting his fingers into her vagina. R.W. described that Appellant's abuse was painful and caused her to bleed vaginally. When the sexual abuse occurred, Ann Wilder (Appellant's girlfriend) and her two sons also lived at the house. No one witnessed the sexual abuse because they were all asleep when it happened.
R.W. testified that the sexual abuse occurred regularly throughout the summer of 2017-almost every time she spent the night alone at Appellant's house. Although she struggled to remember exact dates, R.W. testified that she recalled these incidents of sexual abuse had occurred both during the summer months and during the school year. R.W. attested that she did not consider Appellant to be her father.
In 2018, R.W. told her mother that Appellant had repeatedly sexually abused her. According to R.W., her mother arranged counseling services for her, which eventually resulted in the sexual abuse being reported to law enforcement and other authorities.
R.W. also recalled an incident in which Appellant suffered a burn injury while at work in January of 2017; she remembered that he was transported by helicopter to a hospital in Dallas and that she went to the hospital with her mother to check on him. She testified that this incident occurred before Appellant began sexually abusing her.
Several other witnesses, including Appellant, corroborated R.W.'s timeline of events. Wilder testified that R.W. would come over to their house on the weekends and would sleep on the leather couch in the living room at night. Sometimes R.W. would sleep over at her friend's house next door. Wilder confirmed that when R.W. came over, she would stay for extended periods of time, sometimes for weeks or a month at a time, and would often spend the night at their house. She testified that R.W. would stay for weekends or for the summer, or even sometimes during the school year. Wilder also testified that there were times when R.W. stayed at their house but she, Wilder, was not present because she was at work. Wilder could not recall how old R.W. was at this time. According to Wilder, she did not notice any animosity between R.W. and Appellant; to her, they seemed to get along.
Sometime after the sexual abuse had occurred, and after Wilder was no longer dating Appellant, R.W. reached out to Wilder via Facebook Messenger; the two spoke on the phone, and R.W. divulged that Appellant had sexually abused her. Wilder stated that she believed R.W.'s allegations, even though when she dated Appellant she had never been concerned about his presence around children.
Appellant testified that R.W. would come over to his house on weekends in 2017 to visit her friend, who lived next door. He testified that R.W. sometimes spent the night at the friend's house, but also at times would spend the night at his house. He confirmed that when R.W. slept at his house, she would sleep on the leather couch in the living room. He denied ever sexually abusing R.W.
After conducting an Article 38.37, Section 2-a hearing outside the jury's presence to determine the admissibility of the proffered testimony of Appellant's adult children regarding prior acts of sexual abuse committed by Appellant against them when they were children, the trial court concluded that their testimony was admissible. The trial court declined to conduct a Rule 403 balancing analysis regarding the admissibility of this testimony because it did not believe that Article 38.37, Section 2(b) required it. However, before this testimony was presented to the jury, the trial court admonished and instructed the jury that they could only consider the extraneous offense evidence if they believed that those extraneous events occurred beyond a reasonable doubt.
At the time he testified, C.W. was thirty years old. Like R.W., Appellant is C.W.'s father. C.W. testified that he remembered that he was around the age of four or five when Appellant first sexually abused him; at the time, C.W. shared a bedroom with his sister. He recalled that around age six, he saw his mother and Appellant having intercourse in the living room; he was supposed to be asleep at the time. In another incident at around the same age, C.W. saw Appellant watching pornography in Appellant's bedroom, and Appellant touched C.W.'s penis while they watched it. He also remembered times when he and his sister were taking a bath together and Appellant would tell them to kiss or touch each other inappropriately.
C.W. testified that he remembered a specific instance when he was six years old-he and his sister were "playing slip and slide" -that Appellant directed C.W.'s sister to perform oral sex on C.W., and she obeyed. Similar incidences occurred at other times, according to C.W. Around his twelfth birthday, the police came and removed him and his sister from Appellant's house. According to C.W., he never outcried because he was embarrassed to speak about the sexual abuse.
During cross-examination, C.W. testified that he remembered speaking with CPS caseworkers regarding the allegations of sexual abuse and that there had been an investigation. He was not aware, however, that the investigation had concluded without an affirmative finding of sexual abuse. C.W. was also not aware that Appellant had been indicted for sexual assault in 2006 based on his outcry or that the indictment was ultimately dismissed. C.W. expressed that he did not believe Appellant was a monster and that, despite the sexual abuse, he loved Appellant.
C.W. was thirty-three years old when she testified. Appellant is also C.W.'s father. C.W. testified that Appellant began molesting her at a very young age, although she could not recall precisely when. She knew that when she was around age nine, she had an operation to remove a brain tumor, and she stated she was able to use that memorable event as a milestone for recalling the approximate time periods during which Appellant abused her during her childhood. C.W. recalled incidents that occurred before the operation, when she was around age nine, whereby Appellant inappropriately touched her; however, Appellant did not physically penetrate her.
When C.W. was around age eleven, in addition to his usual molestations, Appellant began forcing her to perform oral sex on him, as well as on her brother, who was around age eight or nine at the time, while Appellant watched and directed them. C.W. testified that Appellant also had vaginal intercourse with her at least six times-she would mark on the wall after each time it happened-and penetrated her vaginally with other items, such as sex toys and a soda bottle. Appellant brought other men from his shop to sexually abuse her and forced her to engage in oral, vaginal, and anal sex with them. According to...
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