Date: 01-14-2017

Case Style:

Case Number: 05-15-01278-CR

Judge: David Bridges

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

John R. Rolater
Emily Johnson-Liu

Defendant's Attorney:

Mitchell R. Nolte

Description: Because appellant does not challenge the sufficiency of the evidence to support the acts
of sexual abuse he committed against S.R., we provide only a limited recitation of the underlying
facts. TEX. R. APP. P. 47.1. S.R. and appellant, her grandfather, had a close relationship. She
and her sister regularly spent time at their grandparents’ home in Wylie. When S.R.’s parents
separated around 2007, her father moved back into appellant’s home.

When S.R. stayed at appellant’s home, she slept in the game room with her sister. She
testified appellant would visit the game room in the middle of the night, and she would wake up
to appellant causing her hand to touch his genitals. She also testified she sometimes woke up to
him performing oral sex on her. The abuse stopped when she was about twelve years old.
S.R. first told her sister about the abuse in a series of text messages in July 2013, but she
did not believe her. Her sister also told their mother about the text messages but mother did not
believe it either. Not until S.R.’s mother later saw the text messages did she believe the abuse
had occurred.
S.R. was interviewed on August 27, 2013 at the Children’s Advocacy Center. Based on
her statement and a review of the text messages, officers arrested appellant. A jury convicted
appellant of continuous sexual abuse of a child.
Sufficiency of the Evidence
In his second issue, appellant argues the evidence is legally insufficient to prove his
sexual abuse of S.R. spanned a period longer than thirty days and occurred on or about the period
alleged in the indictment. The State responds S.R.’s testimony is sufficient to support his
conviction.
The legislature created the offense of continuous sexual assault of a young child in
response to a need to address sexual assaults against young children who are normally unable to
identify the exact dates of the offenses when there are ongoing acts of sexual abuse. Baez v.
State, 486 S.W.3d 592, 595 (Tex. App.—San Antonio 2016, pet. ref’d), cert. denied, 137 S.Ct.
303 (2016). 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. TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2016). Although
the exact dates of the abuse need not be proven, the offense does require proof that two or more
acts of sexual abuse occurred during a period of thirty days or more. Baez, 486 S.W.3d at 595;
see TEX. PENAL CODE ANN. § 21.02(d) (jury is not required to unanimously agree on the exact
dates sexual abuse occurred).
In determining the sufficiency of the evidence, the reviewing court considers the
evidence in the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Acosta v.
State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). The jury is the sole judge of credibility
and weight to attach to witness testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse
of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2016); Lee v. State, 186
S.W.3d 649, 656 (Tex. App.—Dallas 2006, pet. ref’d).
The State need not allege a specific date in an indictment. Sledge v. State, 953 S.W.2d
253, 255 (Tex. Crim. App. 1997). Further, the “on or about” language of an indictment allows
the State to prove a date other than the one alleged in the indictment as long as the date is
anterior to the presentment of the indictment and within the statutory limitation period. Id. at
256. Continuous sexual abuse of a child was no limitations period. See TEX. CODE CRIM. PROC.
ANN. art. 12.01(1)(D) (West Supp. 2016).
Appellant does not challenge the sufficiency of the evidence supporting the two acts of
sexual abuse as alleged in the indictment. He challenges only the sufficiency of the evidence to
support the dates of the offenses as alleged in the indictment—January 1, 2008 through August
1, 2011.
Here, numerous witnesses testified S.R.’s father and mother separated in 2007, and father
then moved in with appellant in Wylie. Complainant testified the abuse began after her father


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moved into the Wylie home. At that time, complainant was eight years old, and she testified the
abuse continued for four or five years. The indictment alleged that appellant committed two or
more acts of sexual abuse during a period of thirty or more days “on or about the 1st day of
January 2008, through the 1st day of August, 2011.” Based on S.R.’s testimony, a rational jury
could have found that appellant committed the offense of continuous sexual abuse against a child
between the dates alleged in the indictment. See, e.g., Williams v. State, 305 S.W.3d 886, 890
(Tex. App.—Texarkana 2010, no pet.) (evidence sufficient to support conviction when victim
testified that although she could not remember the span of time when abuse occurred, it
happened every time she visited appellant’s home and mother testified victim visited appellant’s
home during the five-month period alleged in indictment); see also Srader v. State, No. 05-15
01272-CR, 2016 WL 6161630, at *3 (Tex. App.—Dallas Oct. 24, 2016, no pet.) (evidence
sufficient to support conviction despite victim’s inability to give exact dates of sexual acts).
Appellant’s second issue is overruled.
Competency Evaluation
In his second issue, appellant argues the trial court abused its discretion by failing to
conduct a thorough competency evaluation after he tried to commit suicide following the guilty
verdict. The State responds the trial court’s informal inquiry into appellant’s competence was
sufficient to move forward with punishment.
A defendant must be mentally competent to be sentenced. Casey v. State, 924 S.W.2d
946, 949 (Tex. Crim. App. 1996); see also Gonzales v. State, No. 05-08-00524-CR, 2009 WL
242531, at *3 (Tex. App.—Dallas Feb. 3, 2009, pet. ref’d) (mem. op., not designated for
publication). A person is incompetent if he does not have sufficient present ability to consult
with the person’s lawyer with a reasonable degree of rational understanding or a rational as well
as factual understanding of the proceedings against him. TEX. CODE OF CRIM. PROC. art.


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46B.003(a) (West 2006). A defendant is presumed competent and shall be found competent
unless proved incompetent by a preponderance of the evidence. Id. art. 46B.003(b). On
suggestion that the defendant may be incompetent, the court shall determine by informal inquiry
whether there is some evidence from any source that would support a finding that he may be
incompetent. Id. art. 46B.004(c). In making an informal inquiry, the trial court is not required to
follow any specific protocols. George v. State, 446 S.W.3d 490, 501 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). If, after conducting an informal inquiry, the trial court finds some
evidence to support a finding of incompetence, the trial court must stay the proceedings. TEX.
CODE OF CRIM. PROC. art. 46B.004(d), 46B.005(a).
Courts review issues involving competency determinations for an abuse of discretion.
Rangel v. State, No. 05-14-00379-CV, 2015 WL 4909944, at *3 (Tex. App.—Dallas Aug. 17,
2015 no pet.) (mem. op., not designated for publication). An appellate court may not substitute
its judgment for that of the trial court but instead determines whether the trial court’s decision
was arbitrary or unreasonable. Id. Further, a trial court’s first-hand factual assessment of a
defendant’s competency is entitled to great deference on appeal. See McDaniel v. State, 98
S.W.3d 704, 713 (Tex. Crim. App. 2003).
The following facts are relevant to our inquiry. After the jury found appellant guilty, the
court recessed for lunch. When they returned to begin the punishment phase, the court informed
them they would be in recess until Monday morning because, “We have a circumstance that we
need to do that.”
According to defense counsel’s motion for competency evaluation, appellant immediately
attempted suicide while in the holding cell awaiting the punishment hearing. Paramedics
transported appellant to the hospital for treatment. Defense counsel checked on him over the
weekend at the hospital and attempted to speak with him about the upcoming punishment phase,


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but “Defendant was clearly medicated and [counsel] was not able to communicate with
Defendant because of his state of mind.” Counsel requested appellant undergo a competency
evaluation prior to the continuation of punishment because, “There is a good chance that the
Defendant is clearly not in his right mind.”
When the court reconvened on Monday, the court questioned appellant.1 Appellant
acknowledged that he understood why he was present and that he had been convicted of
continuous sexual abuse of a child. The court further inquired:
THE COURT: Have you been able [to] effectively communicate with [Defense Counsel] about the way you want the trial to go?
THE DEFENDANT: Yes, sir.
THE COURT: Are you able to do that now?
THE DEFENDANT: Yes, sir.
The court inquired into appellant’s suicide attempt and asked if “Anything about that’s going to
interfere with your ability to help [Defense Counsel] in his defense of you today?” and appellant
answered no. The court asked if appellant was taking any medication, and appellant explained
he took medication for high blood pressure, high cholesterol, and medication to prevent kidney
stones but denied ever taking psychotropic drugs for any mental disorder. When the court asked
if he felt good enough to help counsel with his defense, he answered affirmatively. The court
then denied appellant’s motion for competency and stated, “Even though he tried to hurt himself
on Friday after his conviction, the Court is satisfied with his competency.”
Appellant argues the “basic questions” the court asked were insufficient to establish his
competency because they did not inquire into his inability to communicate with defense counsel
1 Both sides acknowledge a different judge (Judge Roach) conducted the informal inquiry because Judge Davis, who conducted the guilt/innocence phase, had a conflict. Although appellant references the fact Judge Roach was not present during the attempted suicide attempt, had no knowledge of the surrounding circumstances of the suicide or facts of trial leading up to it, or indicated he talked with Judge Davis about the guilt/innocence phase, appellant did not object to Judge Roach conducting the competency hearing. Rather, when Judge Roach asked if he could question appellant, defense counsel answered, “Absolutely, Your Honor.”
over the weekend to assist in preparation for the punishment hearing. However, the court was
required under article 46B.003 to determine whether appellant had “sufficient present ability” to
consult with his attorney. TEX. CODE OF CRIM. PROC. art. 46B.003(a)(1). The court addressed
this issue, and appellant acknowledged he had been able to effectively communicate with
counsel and “was able to do that now.” The court further determined appellant was not taking
any psychotropic drugs and his suicide attempt had not interfered with his ability to
communicate with counsel. To the extent appellant argues the court should have further inquired
into his suicide attempt, his argument is without merit. A defendant’s suicidal tendency, without
more, does not constitute incompetence to stand trial. See, e.g., Tadlock v. State, 484 S.W.3d
560, 573 (Tex. App.—Texarkana 2016, no pet.) (evidence of suicide attempt did not warrant sua
sponte informal competency hearing because record void of evidence defendant did not
understand the charges against him); Townsend v. State, 949 S.W.2d 24, 27 (Tex. App.—San
Antonio 1997, no pet.) (despite defendant’s suicidal tendencies and depression, no evidence
indicated he could not consult with his attorney or did not understand proceedings against him).
No evidence was presented indicating appellant could not consult with his attorney or did
not understand the proceeding against him. In fact, the evidence indicated the contrary.
Accordingly, the trial court did not abuse its discretion by denying appellant’s motion for
competency evaluation. We overrule his first issue.

Outcome: