Nathaniel Alexander Caldwell v. The State of Texas

The indictment in this case alleged in part that during the time period from approximately

June 1, 2013, to March 31, 2014, appellant “intentionally and knowingly cause[d] the anus of

[K.D.], a child then younger than six (6) years of age, and not the spouse of the defendant, to

contact the male sexual organ of the defendant.”

At trial, Angela Duncan testified she is the mother of K.D., who was born in July 2009.

In early 2013, Duncan and appellant began living together in Wylie, Texas, in an apartment

rented by Duncan. K.D. and Duncan’s four-year-old son lived with them. Duncan stated the

children were left in appellant’s care while she worked at a nearby McDonald’s.

Duncan testified that in 2013, she took K.D. to a doctor because K.D. “would itch her

butt a lot” and Duncan thought she might have pinworms. Subsequently, during summer 2013,

Duncan sent K.D. to visit with her grandmother in Oklahoma for several months. Duncan

testified that based on statements K.D. made to her grandmother, a “CPS investigation” was

“opened up.” Later that year, Duncan and appellant were no longer “together” and Duncan and

her two children moved to Oklahoma. In summer 2014, a CPS investigator interviewed K.D. at

the “Care Center,” a children’s advocacy center in Oklahoma City.

Dr. Mary Stockett testified that on March 16, 2015, she performed a “sexual abuse

evaluation” of K.D. at the Care Center. That evaluation included speaking with Duncan,

obtaining the results of past forensic interviews of K.D., and performing a physical examination

of K.D. Stockett testified she “found that [K.D.] was sexually abused based on the history that

was provided.” Further, Stockett stated (1) the physical examination she performed “was

normal” and showed no injuries to K.D.; (2) it is not unusual for a child who has been sexually

abused to show no signs of physical injury, especially when, as in this case, the alleged abuse

occurred more than a year earlier; and (3) if a child was “anally assaulted,” it would “be





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consistent that a child may have or complain of anal pain or itching as a result of sexual assault.”

On cross-examination, Stockett stated Duncan told her “[K.D.] had first told her grandmother

that [appellant] had put his penis in her mouth and in her anus,” and when Duncan asked K.D.

about that, K.D. told Duncan “the same thing.”

Rebecca Craig testified she is the director and a forensic interviewer at the Care Center.

She stated she conducted a forensic interview of K.D. in October 2013 in which K.D. “talked

about a little girl named Kylie that poked her in the eye and poked her in the butt.” Craig stated

that was not “a disclosure that would warrant a summary.”

In November 2014, Craig conducted a second forensic interview of K.D. after being

informed that, subsequent to the first interview, K.D. had made an outcry “that she had been

touched on her bottom by [appellant].” In the second interview, (1) K.D. was shown

“anatomical drawings” of a female and male and asked to identify body parts, and (2) Craig

labeled those body parts with the words K.D. used. Those two drawings were admitted into

evidence as, respectively, State’s Exhibit No. 4 and State’s Exhibit No. 5. Craig stated in part

that on both drawings, K.D. identified the buttocks as “butt.” Also, K.D. identified the female

genitals as “pee pee” and the male genitals as “pee pee” or “wee wee.”

Craig testified that during the second interview, she asked K.D. whether she had been

touched on various specific body parts. According to Craig, K.D. (1) stated “Nathan” had “tried

to touch her pee pee” and (2) pointed to her own genital area and the genitals on the female

drawing. Craig stated that when she asked K.D. for more information, K.D. said she didn’t want

to talk about Nathan because “he’s mean,” “Mom would get mad at her,” and “it was sad.”

Further, Craig testified, “And then [K.D.] stated he put his wee wee right there. This is when she

pointed to the genitals, then clarified that on the drawing. And then she said, actually, I mean in

the butt. . . . And clarified that by pointing to the drawing.” Craig stated she asked K.D. to





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describe where that had happened and K.D. told her it happened “in Mommy’s bed” and “under

the bed.” Also, Craig testified K.D. stated it (1) happened “more than one time”; (2) occurred

when “Mommy would be at work at McDonald’s”; and (3) “hurt and felt—it made her butt feel

bad.” Additionally, Craig stated as follows:

A. I asked was it to the skin of her butt or on top of her clothes, and she said it was to the skin and that his wee wee was moving.



Q. Did you ask her to describe the movement of his wee wee?



A. She said—she said, like, this and then drew on the drawing an upwards motion.



Q. More than one line or several lines?



A. Yes. And she also—sorry.



Q. Go ahead.



A. She also said it was inside her butt and that she knew it was because she saw it.



Q. Okay. So she said his wee wee was moving, she drew lines to indicate moving, and then she said it was inside of her butt?



A. Yes. . . . . Q. And the diagram where she used—and you used to describe the butt, is that also commonly referred to or known as the anus?



A. Yes.



K.D. testified she is six years old and lives in Oklahoma. She stated (1) “Nathan” used to

live with her family; (2) he touched her “butt” with his “private spot” at her “mom’s place” while

her mom was working at McDonald’s; and (3) it felt “bad” and she was crying when it happened.

Further, K.D. testified in part as follows:

Q. And did his private—did you have clothes on?



A. Yes.



Q. And did his private touch your clothes or touch your skin?







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A. Skin.



Q. What happened to your clothes?



A. I don’t know.



Q. Okay. How was his—did his private, when it touched your butt, was it moving or was it still?



A. Moving.



Q. Can you show me how it was moving?



A. No.



Q. Can you tell me?



A. I don’t know how it was.



Q. Okay. Did it go on the inside of your butt, the outside of your butt, or something else?



A. Outside my butt.



Q. Okay. Did it hurt?



A. No. But I was crying.



Additionally, on redirect examination, K.D. was asked, “Who was—what was the name

of the person who hurt your butt?” Counsel for appellant objected on the ground of “asked and

answered,” which objection was overruled. Then, K.D. answered, “Nathan.”

Following the testimony of several other witnesses,1 the trial court found appellant guilty

and assessed punishment as described above. Appellant filed a motion for new trial, which was

denied by the trial court without a hearing. This appeal timely followed.



1 Specifically, (1) Dr. Jonathan Johnson testified he performed a “standard checkup” examination of K.D. in July 2013, at which time Duncan told him K.D. had “anal itching,” but he saw no evidence of pinworms; (2) Detective Helen Taylor of the Wylie Police Department testified respecting how she performed the investigation that gave rise to this case; and (3) Carrie Gregory, a caseworker with the Oklahoma Department of Human Services, testified respecting details of coordinating the forensic interviews described above and assisting Duncan with other services available through that department.





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II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard set out in

Jackson v. Virginia, 443 U.S. 307 (1979). Wilson v. State, 448 S.W.3d 418, 425 (Tex. Crim.

App. 2014). We view the evidence in the light most favorable to the verdict and determine

whether a rational factfinder could have found all the elements of the offense beyond a

reasonable doubt. Id. In our review, we are mindful that the factfinder is the sole judge of the

credibility and weight of the evidence. See, e.g., Montgomery v. State, 369 S.W.3d 188, 192

(Tex. Crim. App. 2012). “We will uphold the verdict unless a rational factfinder must have had

reasonable doubt with respect to any essential element of the offense.” Wilson, 448 S.W.3d at

425.

“[A]n inference is a conclusion reached by considering other facts and deducing a logical

consequence from them.” Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).

Factfinders “are permitted to draw multiple reasonable inferences as long as each inference is

supported by the evidence presented at trial,” but “are not permitted to come to conclusions

based on mere speculation or factually unsupported inferences or presumptions.” Winfrey v.

State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); see also Hooper, 214 S.W.3d at 16–17

(stating “courts of appeals should . . . determine whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict”). When the record supports conflicting inferences, we presume the

factfinder resolved the conflicts in favor of the verdict and defer to that determination. Merritt v.

State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012) (citing Jackson, 443 U.S. at 326).









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B. Applicable Law

The Texas Penal Code provides in part that a person commits the offense of aggravated

sexual assault if he intentionally or knowingly causes the anus of a child younger than fourteen

years of age to contact the mouth, anus, or sexual organ of another person, including the actor.

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv) (West Supp. 2016).

C. Application of Law to Facts

In his sole issue, appellant contends the evidence is insufficient to support his conviction

because there is no evidence that (1) “[a]ppellant’s penis was exposed (unclothed) in such a

manner that [a]ppellant could have contacted the anus of [the complainant] with his penis,” or (2)

“that such penetration or contact occurred.” According to appellant,

Though Craig testified that, during the [Care Center] interview, K.D. claimed [a]ppellant’s “wee wee” touched her butt, neither the testimony nor the picture painted by State’s exhibit 4, nor the totality of the evidence can show contact between K.D.’s anus and [a]ppellant’s penis. K.D.’s description of what happened . . . did not prove contact or penetration. This, coupled with the facts that K.D. was wearing clothing and there is absolutely no evidence anywhere that [a]ppellant’s penis is visible (unclothed), and the complete lack of forensic or medical evidence of sexual assault, should lead this Court to only one conclusion—that there was no rational basis for a trier of fact to conclude that [a]ppellant was guilty of Aggravated Sexual Assault of a Child.



The State responds that the evidence shows “[a]ppellant’s penis contacted the victim’s

anus” and therefore is sufficient to support appellant’s conviction. Specifically, the State asserts

(1) “[e]ven if [a]ppellant is correct that the record is not clear on whether [a]ppellant was dressed

at the time of the offense, proof of aggravated sexual assault does not require proof that the

sexual contact was skin-to-skin, but includes contact through clothing,” and (2) “[a] rational trier

of fact could have found in this case that the victim was referring to her anus when she said that

[a]ppellant’s penis touched her ‘butt.’”

This court has concluded that “in the context of aggravated sexual assault of a child,

contact may occur through clothing.” IslasMartinez v. State, 452 S.W.3d 874, 879–80 (Tex.





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App.—Dallas 2014, pet. ref’d) (concluding evidence was sufficient to show contact where both

appellant and victim were clothed at time of alleged incidents). Additionally, other courts of

appeals have specifically concluded that the presence of fabric between an appellant’s sexual

organ and the victim’s anus does not preclude contact for purposes of aggravated sexual assault.

See Cagle v. State, 976 S.W.2d 879, 882 (Tex. App.—Tyler 1998, no pet.) (concluding evidence

was sufficient to support conviction for aggravated sexual assault of child because “even

assuming there was fabric between [appellant’s] penis and [the child’s] anus, contact could have

occurred”); Jones v. State, Nos. 01–98–01400–CR & 01–00–00489–CR, 2000 WL 675714, at *2

(Tex. App.—Houston [1st Dist.] May 25, 2000, pet. ref’d) (not designated for publication)

(concluding evidence was sufficient to support conviction for aggravated sexual assault of child

where appellant contacted child’s anus with his penis through child’s underwear).

Further, as to whether the evidence shows the prohibited contact occurred, appellant

argues (1) “the only evidence was that [a]ppellant touched K.D.’s ‘butt’”; (2) “[t]his vague

reference cannot provide proof beyond a reasonable doubt as to the alleged offense”;

(3) “[a]ccording to K.D., the ‘butt’ is the buttocks, it is NOT the anus, and the entire buttocks

region is circled” (emphasis original); and (4) “[a]t trial, the State simply asked K.D. to name the

areas, not explain where they are located on the body—no one even spoke of the word anus to

K.D.—ever—or asked her about bodily functions of the anus.” However, this Court has stated,

“[A] child may testify using language appropriate for her age to describe the sexual assault . . . . We do not sit as a thirteenth juror to evaluate the weight to be given a witness’ testimony based on her use of unsophisticated language or limited vocabulary. On the contrary, this Court may keep in mind a childwitness’ lack of technical knowledge in accurately describing the parts of the body when reviewing the child’s testimony.



Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.) (citations omitted).

Additionally, several courts of appeals have concluded that a factfinder could reasonably infer a

victim was referring to the anus when stating an act was performed “in the butt.” See Saldana v.





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State, 287 S.W.3d 43, 61 (Tex. App.—Corpus Christi 2008, pet. ref’d) (concluding outcry

testimony that victim stated appellant licked her “in her butt” was sufficient to establish contact

with anus for purposes of aggravated sexual assault of child, even though victim circled “central

buttocks area” in drawing and testified inconsistently at trial); Mallett v. State, 9 S.W.3d 856,

864 (Tex. App.—Fort Worth 2000, no pet.) (concluding jury could reasonably infer victim’s

reference to “butt” was reference to her anus).

In the case before us, the record shows that although K.D. used the word “butt,” rather

than anus, she told Craig that appellant’s penis was “inside her butt” and “was moving” in an

“upward motion,” which “made her butt feel bad.” Also, Craig was asked during her testimony,

“And the diagram where [K.D.] used—and you used to describe the butt, is that also commonly

referred to or known as the anus?” Craig responded affirmatively. On this record, we conclude

the factfinder could have reasonably inferred the contact required to support appellant’s

conviction. See Saldana, 287 S.W.3d at 61; Mallett, 9 S.W.3d at 864; Karnes, 873 S.W.2d at 96;

see also TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv).

We decide against appellant on his issue.