Timothy Edward Shaffer v. The State of Texas--Appeal from 249th District Court of Johnson County
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Affirmed and Memorandum Opinion filed April 27, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-09-00327-CR, 14-09-00336-CR
___________________
TIMOTHY EDWARD SHAFFER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 249th District Court
Johnson County, Texas
Trial Court Cause Nos. F43355, F40654
MEMORANDUM OPINION
Timothy Edward Shaffer appeals his convictions for aggravated sexual assault of a
child and indecency with a child (cause number F40654) and online solicitation of a minor
(cause number F43355).
Appellant contends the evidence is legally and factually
insufficient to support his convictions. We affirm.
I.
Background
The nature of the criminal allegations in this case requires a recitation of somewhat
graphic facts. The complainant, D.S.,1 and appellant first communicated with each other
1
On appeal we will use only the complainant’s initials and the initials of other juveniles involved.
online during the summer of 2004 and eventually spoke on the telephone. D.S. was living
with her father at the time in North Richland Hills, Texas.
In August 2004, D.S., thirteen years old, returned to her mother’s home in Cleburne,
Texas, to begin the school year. Upon her return, D.S. met appellant, twenty-six years
old, in person. Appellant was living with C.P., a friend of D.S.’s from school. Appellant
worked for C.P.’s mother following her back surgery.
After hearing of problems
appellant was having at home, C.P.’s mother invited appellant to live with her and her son.
According to D.S., appellant kissed her and touched her breast during their first
meeting.
In subsequent meetings over the next several days, appellant had sexual
intercourse with D.S. at C.P.’s residence.
D.S.’s mother began to worry that something was going on between her daughter
and appellant. She asked her best friend’s daughter, A.G., to go to C.P.’s residence and
tell her what was going on with her daughter. Based on information she obtained, D.S.’s
mother called the police. She also informed D.S. that further contact with the appellant was
forbidden.
Later, during the school year, D.S. wrote a note that circulated at school. In the
note, D.S. communicated to appellant that she had asked someone to kill her mother and
her mother’s boyfriend so she could be with appellant. D.S. was charged with attempt to
solicit capital murder, spent several weeks in juvenile detention, and eventually went to
live with her father in North Richland Hills after the charges were dismissed.
D.S. decided to contact appellant by telephone in the summer of 2005. That
August, the two had communications over the Internet. During this time, D.S. called her
mother and asked for a ring that appellant had given D.S.
D.S.’s mother became
concerned that her daughter was seeing appellant again and contacted D.S.’s father.
D.S.’s father also became concerned and purchased software to monitor his daughter’s
computer use. During one of their online communications, D.S. and “Lovelyponygirl”
discussed meeting the night of August 26. The plan called for “Lovelyponygirl” to park in
2
the driveway of a vacant house and meet D.S. at her father’s residence. D.S.’s father took
this information to the police, and the police set up surveillance. Appellant arrived as
planned, and the police followed and arrested appellant.
The State charged appellant with three counts of sexual assault of a child, two
counts of indecency with a child, two counts of online solicitation of a minor,2 and seven
counts of possession or promotion of child pornography. See Tex. Penal Code Ann. § §
22.021 (Vernon 2003 & Supp. 2009), 21.11 (Vernon 2003), 33.021 (Vernon Supp. 2009),
43.26 (Vernon 2003). The cause numbers were consolidated in a single trial. The State
moved to dismiss the seven counts of possession or promotion of child pornography (cause
number F43356), and the trial court granted the motion. A jury found appellant guilty of
the remaining charges and sentenced him to 60 years’ confinement in the Texas
Department of Criminal Justice, Institutional Division and a $5,000 fine for each of the
three counts of sexual assault of a child, 10 years’ confinement and a $2,500 fine for each
of the two counts of indecency with a child, and 15 years’ confinement and a $5,000 fine
for one count of online solicitation of a minor.
II.
Standard of Review
In a legal-sufficiency review, we consider all of the evidence in the light most
favorable to the jury’s verdict and decide whether a rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury, as the trier of fact, is the sole judge of
the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999). We may not substitute our judgment for the
jury’s, and we do not re-examine the weight and credibility of the evidence considered by
the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). If any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt, we
must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
2
Prior to trial, the State abandoned one of the two counts of online solicitation of a minor.
3
When we review the factual sufficiency of the evidence, by contrast, we consider
the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We must set aside the verdict if (1) the proof of guilt is so obviously weak as to
render the verdict clearly wrong and manifestly unjust, or (2) the proof of guilt, while
legally sufficient, is nevertheless outweighed by the great weight and preponderance of the
contrary proof so as to render the verdict clearly wrong and manifestly unjust. Roberts v.
State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). However, because the jury is best
able to evaluate the credibility of witnesses, we must afford appropriate deference to its
conclusions. Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). In
conducting a factual-sufficiency review, we discuss the evidence appellant claims is most
important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603
(Tex. Crim. App. 2003).
III.
Discussion
A. Aggravated Sexual Assault of a Child and Indecency with a Child
In two issues, appellant contends the evidence is legally and factually insufficient to
support his convictions for aggravated sexual assault of a child and indecency with a child.
1.
Legal Sufficiency
Appellant argues that there was no evidence he caused the penetration of D.S.’s
sexual organ with his finger. He does not challenge the legal sufficiency of the evidence
to establish any other element of aggravated sexual assault of a child or any element of
indecency with a child.
3
3
Counts one and two of the indictment alleged aggravated sexual assault of a child by digital
penetration; count three alleged aggravated sexual assault of a child by D.S.’s sexual organ contacting
appellant’s sexual organ. Counts four and five of the indictment alleged indecency with a child by contact
with D.S.’s breast. On appeal, appellant only challenges the legal sufficiency of the evidence to show he
digitally penetrated D.S. To the extent that appellant may have intended to challenge the legal sufficiency
of the evidence with respect to counts three, four, and five, appellant has failed to brief any such issues on
appeal. See Tex. R. App. P. 38.1(i).
4
A person commits the offense of aggravated sexual assault of a child “if the person
intentionally or knowingly causes the penetration of the . . . sexual organ of a child by any
means” and the victim is younger than 14 years of age. Tex. Penal Code Ann. §
22.021(a)(1)(B)(i), (2)(B) (Vernon 2003 & Supp. 2009). In counts one and two of the
indictment, the State alleged appellant intentionally or knowingly caused the penetration of
D.S.’s sexual organ with his finger.
Appellant contends there was no evidence that he caused the penetration of D.S.’s
sexual organ with his finger. He asserts D.S. testified to fondling and sexual intercourse,
but not to digital penetration. Appellant’s assertion is incorrect. D.S. testified that
appellant penetrated her sexual organ with his finger on more than one occasion while at
C.P.’s residence during a one-and-a-half week period in August 2004. In sexual abuse
cases, the testimony of the child victim alone is sufficient to support the conviction. Tex.
Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005); Tran v. State, 221 S.W.3d 79,
88 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Therefore, the evidence is legally
sufficient to support appellant’s conviction for the two counts of aggravated sexual assault
of a child that alleged digital penetration.
2.
Factual Sufficiency
Appellant next contends the evidence is factually insufficient to support his
convictions for aggravated sexual assault of a child and indecency with a child by contact.
In support of his factual-insufficiency argument, appellant contends (1) witnesses never
stated they saw appellant place his finger in D.S.’s sexual organ; (2) D.S. did not testify to
digital penetration; (3) contrary evidence showed appellant had piercings on his penis and,
because of the piercings, any sexual intercourse would have caused physical damage to
D.S.; and (4) one of the State’s witnesses, A.B., could not identify appellant in the
courtroom.4
4
A.B. identified appellant from a picture of how he appeared in August 2004, but could not
identify him in court.
5
D.S. testified that appellant penetrated her sexual organ with his finger on more than
one occasion while at C.P.’s residence during a one-and-a-half week period in August
2004. Appellant does not state how appellant’s piercings or A.B.’s inability to identify
appellant in court contradicted this evidence of digital penetration. Viewing the evidence
in a neutral light, the evidence is not so obviously weak as to render the verdict clearly
wrong and manifestly unjust. Likewise, the proof of guilt is not outweighed by the great
weight and preponderance of the contrary proof so as to render the verdict clearly wrong
and manifestly unjust.
Therefore, the evidence is factually sufficient to support
appellant’s conviction for the two counts of aggravated sexual assault of a child that
alleged digital penetration.
To the extent appellant is attempting to challenge the factual sufficiency of the
evidence to prove the aggravated sexual assault of a child charge in count three of the
indictment or to prove the indecency with a child charges in counts four and five of the
indictment, appellant’s argument is without merit.
A person commits the offense of aggravated sexual assault of a child “if the person
intentionally or knowingly causes the penetration of the . . . sexual organ of a child by any
means” and the victim is younger than 14 years of age.
Tex. Penal Code Ann. §
22.021(a)(1)(B)(i), (2)(B) (Vernon 2003 & Supp. 2009). In count three of the indictment,
the State alleged appellant intentionally or knowingly caused the penetration of D.S.’s
sexual organ with his sexual organ.
A person commits the offense of indecency with a child “if, with a child younger
than 17 years of age . . . the person engages in sexual contact with the child . . . .” Id. §
21.11(a)(1) (Vernon 2003 Supp. 2009).5 “Sexual contact,” as it applies in this case, means
any touching by a person of the breast, committed with the intent to arouse or gratify the
sexual desire of any person. Id. § 21.11(c)(1).
In 2009, the legislature removed the requirement that the child must not be the person’s spouse.
Act of Sept. 1, 2009, 81st Leg., R.S., ch. 260, § 1, 2009 Tex. Gen. Laws 710. In this case, D.S. testified
that she was not appellant’s spouse.
5
6
D.S. testified that appellant had sexual intercourse with her and touched her breast
on more than one occasion at C.P.’s residence during a one-and-a-half week period in
August 2004. The testimony of the child victim alone is sufficient to support a conviction
under chapter 21, section 22.011, or section 22.021. Tex. Code Crim. Proc. Ann. art.
38.07 (a), (b)(1). A.B. also testified that D.S. and appellant went into a room alone at
C.P.’s residence and A.B. heard moaning and things being moved around. She stated that
when appellant came out of the room, he was putting his shirt back on and then made
comments to D.S. to “tell him next time that she started her period” and asked A.B. to smell
his beard because “[D.S.] tasted real good.” In addition, C.P. testified that he saw
appellant touch D.S.’s “breast area” at C.P.’s residence. A.G. testified that, while at
C.P.’s residence, she saw appellant grab D.S.’s breast as he was talking about putting lotion
on her breasts. The specific intent required for the offense of indecency with a child may
be inferred from a defendant’s conduct, his remarks, and all of the surrounding
circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) (panel
op.).
With regard to testimony about appellant’s piercings and A.B.’s inability to identify
appellant in court, the jury is the sole judge of the weight and credibility of witness
testimony. Lancon, 253 S.W.3d at 707. The jury may choose to believe some testimony
and disbelieve other testimony. Id. Here, the jury chose to believe the testimony that
appellant had sexual intercourse with D.S. and touched her breast.
Viewing the evidence in a neutral light, the evidence is not so obviously weak as to
render the verdict clearly wrong and manifestly unjust nor is the proof of guilt outweighed
by the great weight and preponderance of contrary proof.
Accordingly, we overrule appellant’s first and second issues in his appeal from his
convictions in cause number F40654.
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B. Online Solicitation of a Minor
In a separate brief, appellant contends the evidence is legally and factually insufficient to
support his conviction for online solicitation of a minor. Specifically, appellant argues
that there is no evidence he was the person who solicited D.S.6
1.
Legal Sufficiency
As it applies to this case, a person commits the offense of online solicitation of a
minor “if the person . . . through a commercial online service, knowingly solicits a minor to
meet another person, including the actor, with the intent that the minor will engage in . . .
deviate sexual intercourse with the actor . . . .” Tex. Penal Code Ann. § 33.021(c) (Vernon
Supp. 2009). Deviate sexual intercourse is defined as “any contact between any part of
the genitals of one person and the mouth or anus of the other person.” Tex. Penal Code
Ann. § 21.01(1)(A) (Vernon 2003).
D.S. testified that she and appellant had communications on AOL Instant
Messenger in August 2005.
She stated that appellant used the screen name
“Lovelyponygirl.” The record reflects a sexually explicit dialogue between the screen
name D.S. testified to using 7 and “Lovelyponygirl” on August 25, 2005. D.S. and
“Lovelyponygirl” also discussed via instant messenger meeting in person the night of
August 26, 2005, to watch a movie and have sexual intercourse, including remarks by
“Lovelyponygirl” that he wanted to place his penis in D.S.’s anus. D.S. testified that the
movie they were going to watch was “Charlie and the Chocolate Factory.” The discussion
included a detailed description of where “Lovelyponygirl” should park his car, namely in
the driveway of a green and white vacant house on Simmons Street.
While appellant’s “Summary of the Argument” under his legal and factual sufficiency issues
states generally that the essential elements of online solicitation of a minor were not met beyond a
reasonable doubt, appellant does not challenge the sufficiency of the evidence to prove the other elements
of the offense in his argument.
6
Although D.S.’s screen name was not concealed at trial, given the nature of the case, on appeal
we will not use her screen name.
7
8
Detective Wayne Goodman testified that on the night of August 26, 2005, he saw a
white pick-up truck park in the driveway of a vacant house, as described in the messages
between D.S. and “Lovelyponygirl,” and he observed a man exit the vehicle and walk to
D.S.’s residence. The police went to the residence and arrested appellant. A bag was
found in D.S.’s bedroom that contained the movie “Willie Wonka and the Chocolate
Factory,” an unopened condom, and a bottle of massage oil. Detective Goodman testified
that the bag belonged to appellant.
In addition, the August 25, 2005 dialogue included a discussion about D.S. sending
sexually graphic photographs of herself to “Lovelyponygirl.”
Officer James
Hollingsworth, a criminal investigator assigned to the Computer Crimes Unit at the Tarrant
County District Attorney’s Office, analyzed a computer taken from D.S.’s father’s
residence in North Richland Hills. He testified that he found seven sexually graphic
images on the hard drive and “Lovelyponygirl” on the AOL buddy list.
Hollingsworth also analyzed an external hard drive and computer taken from C.P.’s
residence. He testified that he found two folders labeled “Lovelyponygirl,” D.S.’s screen
name on the AOL buddy list, and the same sexually graphic photographs. On the external
hard drive, he found pieces of text with the email address used by appellant.
The testimony showed that C.P., his mother, and appellant lived at C.P.’s residence
and everyone had access to the computer in the computer room. C.P. denied that he was
“Lovelyponygirl” during his testimony. Detective Goodman testified that the dialogue
between “Lovelyponygirl” and D.S. indicated “Lovelyponygirl” was a male.
When viewing the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have found that appellant was the one who, through a
commercial online service, knowingly solicited D.S. to meet him with the intent that she
would engage in deviate sexual intercourse with him.
9
2.
Factual Sufficiency
Appellant next contends the evidence is factually insufficient to support his
conviction for online solicitation of a minor. In support of his factual-insufficiency
argument, appellant contends (1) no evidence was presented that appellant was the one
who made the online solicitation; (2) no testimony proved that appellant or D.S. had access
to computers with Internet service;8 (3) there was evidence that multiple people had access
and, in fact, used the computers seized by law enforcement; and (4) D.S. admitted that, at
times, she thought she was talking to one person online only to realize it was someone else.
As discussed under the legal-sufficiency analysis, there was evidence that appellant
was the one who, through a commercial online service, knowingly solicited D.S. to meet
him with the intent D.S. would engage in deviate sexual intercourse with him. C.P. and
C.P.’s mother testified that appellant had access to the computer in the computer room at
C.P.’s residence; C.P.’s mother testified that the computer had Internet service. D.S.
testified that when she first began communicating online with appellant in the summer of
2004, she initially thought she was communicating with C.P.; however, D.S. testified that it
was appellant with whom she was communicating online on August 25, 2005, which was
the communication that gave rise to the charge for online solicitation of a minor.
Specifically, D.S. testified that the sexually explicit dialogue between her screen name and
“Lovelyponygirl” on August 25 via AOL Instant Messenger was a dialogue between her
and appellant.
While testimony that several people had access to the computer at C.P.’s residence
may have suggested that someone else could have used the computer to contact D.S., there
was no evidence presented to suggest that is what actually happened. Lewis v. State, 193
S.W.3d 137, 142 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (evidence of theft not
8
Detective Goodman testified that the only computer with Internet access at the North Richland
Hills home was located in D.S.’s father’s bedroom when Goodman visited the home on August 8.
However, Goodman stated that the same computer with Internet access was found in D.S.’s bedroom on the
night of August 26, 2005, when the police arrested appellant.
10
factually insufficient when testimony indicated someone else could have used computer
but no evidence that is what actually happened). The jury is the sole judge of a witness’s
credibility and the weight to be given the testimony. Lancon, 253 S.W.3d at 707. The
jury may choose to believe some testimony and disbelieve other testimony. Id. Here, the
jury chose to believe D.S.’s testimony that it was appellant with whom she was
communicating via AOL Instant Messenger on August 25.
Viewing the evidence in a neutral light, the evidence is not so obviously weak as to
render the verdict clearly wrong and manifestly unjust nor is the proof of guilt outweighed
by the great weight and preponderance of contrary proof.
Accordingly, we overrule appellant’s first and second issues in his appeal from his
conviction in cause number F43355.
III.
Conclusion
Having overruled appellant’s issues, we affirm the judgments of the trial court.
/s/
Kent C. Sullivan
Justice
Panel consists of Justices Frost, Boyce, and Sullivan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
11
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