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Date: 01-08-2021
Case Style:
Cornell Witcher v. The State of Texas
Case Number: 06-20-00040-CR
Judge: Ralph K. Burgess
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney: Jerry D. Rochelle
J. Randle Smolarz
Defendant's Attorney:
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Description:
Texarkana, Texas - Criminal defense attorney represented Cornell Witcher with a Aggravated Sexual Assault charge.
As a result of Cornell Witcher’s repeated sexual encounters with Mary1 when she was ten
or eleven years old, a Bowie County jury convicted Witcher of continuous sexual abuse of a
young child, and Witcher was sentenced to life imprisonment and assessed a $10,000.00 fine.
On appeal, Witcher challenges the sufficiency of the evidence supporting his conviction. An
essential element of the offense charged is that Witcher committed two or more acts of sexual
abuse during a period that was thirty or more days in duration. See TEX. PENAL CODE ANN. §
21.02(b). The State failed to present legally sufficient evidence to prove this element of the
offense. Therefore, we reverse Witcher’s conviction for continuous sexual abuse of a young
child and remand this case to the trial court for a new trial on the lesser-included offenses of
aggravated sexual assault and indecency with a child.
I. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements o f the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous [legal
sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
1We use pseudonyms to refer to the minor victim and her relatives. TEX. R. APP. P. 9.10.
2See TEX. PENAL CODE ANN. § 21.02(b).
3
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007)).
The jury, as “the sole judge of the credibility of the witnesses and the weight to be given
their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.”
Id. (second alteration in original) (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App.
2014)). Juries may “draw multiple reasonable inferences as long as each inference is supported
by the evidence presented at trial.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
“However, juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions.” Id. Consequently, an inference based on
speculation “is not sufficiently based on facts or evidence to support a finding beyond a
reasonable doubt.” Id. at 16.
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Williamson, 589 S.W.3d at 298 (quoting Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one
that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase
the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
4
adequately describes the particular offense for which the defendant was tried.’” Id. (quoting
Malik, 953 S.W.2d at 240).
Under the statute and the indictment in this case, the State was required to establish
beyond a reasonable doubt that Witcher, (1) during a period that was thirty or more days in
duration (2) when Witcher was seventeen years of age or older, (3) committed two or more acts
of sexual abuse (4) against Mary, a child younger than fourteen years of age. See TEX. PENAL
CODE ANN. § 21.02(b). The predicate acts of sexual abuse alleged were (1) aggravated sexual
assault of a child by intentionally or knowingly causing Mary’s sexual organ to contact
Witcher’s sexual organ when Mary was younger than fourteen years of age, (2) aggravated
sexual assault of a child by intentionally or knowingly causing Witcher’s mouth to contact
Mary’s sexual organ when Mary was younger than fourteen years of age, and (3) indecency with
a child by sexual contact by Witcher touching Mary’s genitals with intent to gratify his sexual
desire when Mary was younger than seventeen years of age. See TEX. PENAL CODE ANN.
§§ 21.11(a)(1), 22.021(a)(1)(B)(iii), (2)(B).
Witcher only challenges the sufficiency of the evidence showing that the sexual abuse
occurred for a duration of thirty or more days. Specifically, he argues that there was insufficient
evidence to support an inference that the first instance of sexual abuse occurred thirty or more
days before the sexual abuse ended.
II. The Evidence at Trial
Mary, who was born on July 18, 2008, testified that, in 2018, she was living in Texarkana
with her mother; her older brother, Darren; a younger brother; and Witcher. She testified that, at
5
some point, Darren went to jail, and Witcher started coming into her room and doing things to
her. Mary testified that the first time Witcher came into her bedroom, he woke her up, unclothed
her, and put his penis, which she called his “thing,” into her vagina, which she called her “middle
part.” She said that this happened more than five times. She also testified that Witcher used his
mouth to lick her private area and that this also occurred more than five times. When she was
asked when Witcher began doing these things, Mary responded, “When my brother went to jail.”
She said that it stopped when she told her sister, Erin.
Erin testified that, around the night of July 26, 2018, Mary came to spend the night.
When she noticed a fishy smell on Mary that remained even after a bath, Erin asked her if
someone had been messing with her. Mary told her that Witcher had been messing with her a
couple of times. Mary also told her that Witcher had pulled her pants down and put his stuff in
her stuff a lot. Testimony also showed that, after their older brother picked them up, they went
to confront Witcher, and then Mary was taken to the hospital. Regarding when Darren went to
jail, Erin was asked, “All right. In about June of -- maybe June 10th, give or take, did [Darren]
get arrested and end up in the Bowie County Jail?” To which Erin responded, “Yes, ma’am.”
Cristi Hicks, a nurse practitioner at the Wadley Regional Medical Center (Wadley)
emergency room, testified that she treated Mary on July 28, 2018,
3
and that she performed a
sexual abuse nurse examination in which Mary gave a history of sexual abuse. Mary’s history
was consistent with Erin’s testimony. Her history also indicated that Mary stated that Witcher
did it “the night before last.”
3Mary’s medical records indicate that she was seen at Wadley at 04:44 on July 28, 2018.
6
Dustin Thompson, an investigator for the Bowie County Sheriff’s Department, was also
asked about his investigation into Darren in the following exchange:
Q [By the State]: Okay. This -- the period of time alleged in the indictment,
the on or about date, June 10th, 2018 through July 28th, 2018. The testimony in
this courtroom in front of this jury is that the abuse started in June when [Darren]
went to jail, okay?
A Correct.
Q All right. In the course of your investigation, did you determine who
[Darren] was?
A It was the brother.
Q Okay.
A Yes.
Q And, in fact, did you confirm that [Darren] went to jail and was
incarcerated around that time in 2008 [sic]?
A Yes, ma’am.
No other testimony regarding when the sexual abuse began and ended appears in the record.
III. Analysis
To support a conviction for continuous sexual abuse of a child, the State is not required to
prove the exact dates of the sexual abuse, but it is required to show “that two or more acts of
sexual abuse occurred during a period of thirty days or more.” Garner v. State, 523 S.W.3d 266,
271 (Tex. App.—Dallas 2017, no pet.) (citing Baez v. State, 486 S.W.3d 592, 595 (Tex. App.—
San Antonio 2016, pet. ref’d)). Further, although the jury is not required to agree on which
specific acts were committed by the defendant or the dates on which they occurred, it must
unanimously agree that the defendant committed two or more acts of sexual abuse over a period
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of thirty or more days. TEX. PENAL CODE ANN. § 21.02(d); Garner, 523 S.W.3d at 271. Witcher
argues that, although the day that the sexual abuse ended was established, there was no direct or
indirect evidence of when the abuse began and that the evidence at trial did not support an
inference that the abuse began thirty or more days before it ended. We agree.
In Hooper, the Court of Criminal Appeals explained that juries are permitted “to draw
multiple reasonable inferences as long as each inference is supported by the evidence presented
at trial. However, juries are not permitted to come to conclusions based on mere speculation or
factually unsupported inferences or presumptions.” Hooper, 214 S.W.3d at 15. It then
elucidated the difference between an inference and a conclusion based on speculation:
[A]n inference is a conclusion reached by considering other facts and deducing a
logical consequence from them. Speculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented. A conclusion reached by
speculation may not be completely unreasonable, but it is not sufficiently based
on facts or evidence to support a finding beyond a reasonable doubt.
Id. at 16. To illustrate the difference, the court posed the following hypothetical:
A woman is seen standing in an office holding a smoking gun. There is a body
with a gunshot wound on the floor near her. Based on these two facts, it is
reasonable to infer that the woman shot the gun (she is holding the gun, and it is
still smoking). Is it also reasonable to infer that she shot the person on the floor?
To make that determination, other factors must be taken into consideration. If she
is the only person in the room with a smoking gun, then it is reasonable to infer
that she shot the person on the floor. But, if there are other people with smoking
guns in the room, absent other evidence of her guilt, it is not reasonable to infer
that she was the shooter. No rational juror should find beyond a reasonable doubt
that she was the shooter, rather than any of the other people with smoking guns.
To do so would require impermissible speculation.
Id. The evidence in this case is comparable to the room with the woman and other people in the
room all having smoking guns.
8
Mary testified that the abuse ended after she told Erin about the abuse. The evidence also
showed that Mary was taken to the hospital in the early morning hours of July 28, 2018, where
she told Hicks that the last time Witcher had assaulted her was “the night before last night.”
Construing this evidence most favorably to the jury’s verdict, this establishes that the last
episode of abuse occurred on July 26, 2018. Consequently, to support a finding that the abuse
continued for a period of thirty or more days, the evidence must support an inference beyond a
reasonable doubt that one or more acts of abuse occurred on or before June 26, 2018. See
Hooper, 214 S.W.3d at 15–16.
However, testimony regarding when the abuse began is sparse and ambiguous. Mary
testified that it began when her brother went to jail. At trial, the State did not establish the
precise date on which her brother went to jail,4
and on appeal, the State does not explain how this
testimony establishes that date. And the evidence in this case only vaguely references a time
span during which her brother could have gone to jail. Thompson testified that his investigation
showed that Darren was arrested and incarcerated “around” the period between June 10 and
July 28, 2018. Erin agreed that Darren went to jail “in about June of -- maybe June 10th, give or
take.” The words “at some point,” “around,” “about,” “maybe,” and “give or take” make the
date more uncertain, not less.5
Thus, the jury could only have speculated from this testimony
that Mary’s brother went to jail on June 10.
4For example, in her direct examination, Mary only testified that her brother went to jail “at some point.”
5For example, the phrase “give or take” begs the question, “Give or take what?” A couple of days? A couple of
weeks? A couple of months? This term interjects substantial uncertainty into the date.
9
Yet, even if we assume the evidence permits a non-speculative inference that testimony
that Mary’s brother went to jail “around” June 10, “give or take,” would allow the jury to
reasonably infer the date he went to jail was on or before June 26, it does not necessarily follow
that the abuse began on the very day he went to jail. The term “when” can mean both a specific
time or a general reference to a time span. See When MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY (11th ed. 2006) (“1a: at or during the time that: WHILE
was a boy>. b: just at the moment that .”). Mary’s
testimony that the assaults began when her brother went to jail equally supports an inference that
the abuse began on the very date her brother went to jail or that it began during that period of her
life when her brother went to jail. Without more, Mary’s testimony merely gives rise to
speculation that the assaults began on the specific day her brother went to jail. See Hooper, 214
S.W.3d at 15–16.
Of course, the evidence could still be sufficient to prove the thirty-days-or-more element
of this offense even if the assaults did not begin on the day he went to jail, so long as they began
on or before June 26. Yet, the evidence is just as speculative as to any date during that period.
To begin, Mary testified that the sexual assaults were committed in two different manners—
orally and by penetration. Mary also testified that each manner of sexual assault happened more
than five times. Viewing this testimony in the light most favorable to the verdict, the jury could
have inferred that at least a minimum of twelve acts of abuse occurred.6
Yet, there is no
6One more than five is six, and twice that number is twelve; therefore, the jury could reasonably infer from Mary’s
testimony that—at a minimum—twelve separate assaults occurred. However, to conclude a sufficient number of
assaults more than twelve is sheer speculation: more than five could be any number. Of course, logically, at a
10
testimony regarding the frequency with which the assaults occurred. Did they happen every day,
every other day, twice a day? Likewise, there is no testimony regarding whether Witcher
assaulted Mary orally on separate occasions from when he assaulted her by penetration. In the
absence of any evidence regarding the frequency of the abuse, or whether one or more manners
of assault occurred on separate days, there is nothing by which the jury could infer rather than
speculate that the first of the twelve assaults occurred on or before June 26.
For example, if all the sexual assaults occurred on separate days, and if Witcher assaulted
Mary in only one manner on each occasion, this would indicate that the abuse began as late as
July 14; if the separate manner of assaults occurred every other day and only one assault
occurred each time, this would indicate that the abuse began as late as July 4. To reach back to
June 26 or before, the jury would have to have inferred that (1) the assaults occurred less
frequently than every other day and (2) that Witcher did not assault Mary both orally and by
penetration on the same day on any occasion. Yet, no evidence to support either inference is in
evidence. Thus, the jury could have inferred that the first assault occurred on or before June 26
or it could have inferred that the first assault occurred after June 26, but there is no evidence by
which it could have inferred one over the other. Although such inferences “may not be
completely unreasonable, . . . [they are] not sufficiently based on facts or evidence to support a
finding beyond a reasonable doubt.” Id. at 16. Consequently, we find that no rational jury could
find beyond a reasonable doubt that the sexual abuse occurred during a period that is thirty days
or more in duration. See id. We sustain Witcher’s issue.
certain point a number of assaults beyond twelve would be unrealistic, but there is nothing in the record by which a
jury could infer beyond mere speculation how many more than twelve assaults could have realistically occurred.
11
IV. Disposition
Generally, when we find “the evidence insufficient to establish an element of the charged
offense, but the jury necessarily found the defendant guilty of a lesser offense for which the
evidence is sufficient,” we should “reform the judgment to reflect the lesser-included offense and
remand for a new punishment hearing.” Lee v. State, 537 S.W.3d 924, 927 (Tex. Crim. App.
2017) (citing Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014)). However,
this mandatory reformation does not “extend to circumstances where there are multiple lesserincluded offenses that meet the criteria for reformation, or where we have no way to determine
which degree of the lesser-included offense the jury found the appellant guilty of.” Rodriguez v.
State, 454 S.W.3d 503, 510 (Tex. Crim. App. 2014) (op. on reh’g). In such a case, the proper
remedy is remand to the trial court for a new trial of the lesser-included offenses. Id. at 510–11.
Under the jury charge in this case, in order to find that Witcher committed continuous
sexual abuse of a child, the jury was required to find that Witcher committed at least two of the
following acts: (1) aggravated sexual assault of a child by intentionally or knowingly causing
Mary’s sexual organ to contact Witcher’s sexual organ when Mary was younger than fourteen
years of age, (2) aggravated sexual assault of a child by intentionally or knowingly causing
Witcher’s mouth to contact Mary’s sexual organ when Mary was younger than fourteen years of
age, and (3) indecency with a child by sexual contact by Witcher touching Mary’s genitals with
intent to gratify his sexual desire when Mary was younger than seventeen years of age.
Aggravated sexual assault of a child is a first-degree felony, and indecency with a child, as
charged in this case, is a second-degree felony. TEX. PENAL CODE ANN. §§ 21.11(d), 22.021(e).
12
The evidence in this case established that Witcher committed at least two acts of
aggravated assault of a child, and the same evidence would also support a jury’s finding that
Witcher committed at least two acts of indecency with a child. Because the jury was also
instructed that it was “not required to agree unanimously on which specific acts of sexual abuse
were committed by the defendant or the exact date when those acts were committed,” we cannot
be certain which, if any, of the offenses of aggravated sexual assault and indecency with a child
the jury unanimously agreed Witcher committed, or whether the jury found that Witcher
committed aggravated sexual assault or indecency with a child.
Therefore, we reverse the trial court’s judgment convicting Witcher of continuous sexual
abuse of a child7
and remand this case to the trial court for a new trial on the lesser-included
offenses of aggravated sexual assault of a child and indecency with a child. See Rodriguez, 454
S.W.3d 503; see also Hines v. State, 551 S.W.3d 771, 783 (Tex. App.—Fort Worth 2017, no
pet.) (applying Rodriguez when conviction for continuous sexual abuse of a child was reversed).
Ralph K. Burgess
Justice
Date Submitted: November 23, 2020
Date Decided: December 21, 2020
Do Not Publish
7The amended judgment in this case incorrectly recites that Witcher was convicted of aggravated sexual assault of a
child. Normally, we would modify the judgment to reflect that Witcher was convicted of continuous sexual abuse of
a child. However, since we are reversing Witcher’s conviction, such modification is unnecessary.
Outcome: Therefore, we reverse the trial court’s judgment convicting Witcher of continuous sexual abuse of a child and remand this case to the trial court for a new trial on the lesser-included offenses of aggravated sexual assault of a child and indecency with a child. See Rodriguez, 454 S.W.3d 503; see also Hines v. State, 551 S.W.3d 771, 783 (Tex. App.—Fort Worth 2017, no pet.) (applying Rodriguez when conviction for continuous sexual abuse of a child was reversed).
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