Michelle Ann Thompson v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-372-CR

MICHELLE ANN THOMPSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2000-882-C

MEMORANDUM OPINION

A jury found Michelle Ann Thompson guilty of aggravated sexual assault and assessed her punishment at fifty years in prison and a ten thousand dollar fine. Michelle complains in her appeal that the evidence is legally and factually insufficient to establish her intent to promote or assist her husband s aggravated sexual assault of J.W., Michelle s ten year old daughter. We will affirm.

LAW OF PARTIES

Although the aggravated sexual assault of which Michelle was found guilty arose from Todd Thompson s oral sex with J.W., Michelle may be found guilty under the law of parties. Tex. Pen. Code Ann. 7.02 (Vernon 1994). Under the law of parties:

A person is criminally responsible for an offense committed by the conduct of another if:

(2) acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

Id. at 7.02(a) (2), (3).

Physical presence alone at the scene of the crime is not enough to make one a party. See Miles v. State, 918 S.W.2d 511, 515 (Tex. Crim. App. 1996). But, [e]vidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101, 90 L. Ed. 2d 352, 106 S. Ct. 1942 (1986); Green v. State, 839 S.W.2d 935, 943 (Tex. App. Waco 1993, pet. denied).

To determine whether the defendant is a party to the crime, the court may look to events occurring before, during, and after the commission of the offense. Ransom, 920 S.W.2d at 302. The court may also rely on actions of the defendant which show an understanding and common design to do the prohibited act. Id. And circumstantial evidence may be sufficient to prove the defendant s status as a party. Id.LEGAL SUFFICIENCYA "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).

At a separate trial, Todd Thompson, Michelle s husband, was found guilty of the aggravated sexual assault of J.W. During Michelle s trial, J.W. testified that Todd sexually assaulted her multiple times; including times when her mother would watch or participate. One such assault occurred when they lived in Bruceville and J.W. came for a visit. J.W. was in bed between Todd and her mom when Todd rubbed J.W. s private parts under her clothes. J.W. saw her mom watching them.

Another assault occurred when they lived on Scott Circle. J.W. testified that Todd came and got J.W. out of her bed and took her to bed with him and her mom. At first, while J.W. was laying in bed beside them, Todd was on top of her mom moving up and down. Then, when her mom was on top of Todd, he told J.W. to take off her clothes and sit on his head. J.W. only took off her panties and straddled Todd s head while on her knees. Todd s head was between her legs. Todd licked her private parts where she goes number one for a couple of minutes. J.W. s mom would sometimes move up and down and sometimes she would stop and look at J.W. After it stopped, J.W. laid down on the bed with Todd and her mom.

Michelle testified that she and Todd had sex when J.W. was in bed with them approximately twice. She would tell Todd no, but he would keep on and on at her, and she would just finally give in.

Michelle also testified regarding the assault J.W. described as happening when they lived on Scott Circle. Michelle stated that she and Todd were in bed. J.W. knocked on the door. Michelle told Todd not to let J.W. in and they argued about it. Michelle then told Todd he could let J.W. in. J.W. got in bed with her mom and Todd and they all went to sleep. Todd woke Michelle wanting to have sex with her. Michelle had her back to Todd and J.W. was in front of Michelle. Todd and Michelle were having sex when Todd reached over and touched J.W. Michelle testified she does not know where Todd touched J.W., just that he touched her while they were having sex.

Michelle testified to her knowledge of multiple sexual assaults of J.W. by Todd and to her attempts to increase the amount of visitation J.W. had with Todd and Michelle despite her knowledge of the abuse. In her third statement to police, Michelle wrote: I know it is my fault that I didn t protect her from him doing the things he was doing to her.

Officer Abdon Rodriquez testified that Michelle became a suspect in the aggravated sexual assault of her daughter because of information he received from Marvin Walizer, J.W. s biological father. Walizer reported to Officer Rodriquez that Michelle told some friends she gave Todd a father s day present, which consisted of Michelle and J.W. having sex with Todd at the same time.

Additional witnesses also testified to facts concerning Michelle s involvement with the aggravated sexual assault of her daughter. Lezlie Paris, Todd s sister, testified to statements that both Michelle and Todd made to her regarding assaults of J.W. B.W., Michelle s son, testified regarding the time he saw Todd and J.W. enter and leave the shower together and to a time he and Michelle found Todd and J.W. asleep together on the couch. Todd was laying on the couch with just his boxer shorts on and J.W. was naked and laying on top of Todd.

Veronica Terrell, a Child Protective Services Investigator, testified to statements Michelle made to Terrell concerning the aggravated sexual assault of J.W. Terrell testified Michelle told her Michelle and Todd were having sex, J.W. knocked on the door, Todd got up and let J.W. in the bedroom, and Todd made J.W. take her clothes off during the course of the events.

In this case, the essential element of the crime of which Michelle complains is her intent to promote or assist in the aggravated sexual assault of her daughter. After a careful review of the record viewed in the light most favorable to the verdict, we find the evidence is sufficient for a rational jury to find beyond a reasonable doubt that Michelle intended to assist or promote the commission of the aggravated assault on J.W. We overrule Michelle s first issue.

FACTUAL SUFFICIENCY

In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the in the light most favorable to the prosecution construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

We must also remain cognizant of the factfinder s role and unique position one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

The first type of factual sufficiency review requires us to review the evidence that supports the inference Michelle intended to assist or promote the aggravated sexual assault of her daughter. Based on the facts in the record, some of which are recounted above, we find the evidence presented concerning Michelle s intent to assist or promote the commission of the aggravated assault on J.W. is not so obviously weak as to undermine confidence in the jury s determination.

The second type of factual sufficiency review requires us to compare the evidence which proves Michelle s guilt against that which is contrary to her guilt. In addition to her own testimony recounted above, Michelle presented two witnesses in her defense.

Nicole Conner, Michelle s best friend for fifteen years, testified on her behalf. Conner testified that Wendy Young was angry one night when they were all at a nightclub. Young confronted Michelle, and Michelle acted surprised and scared. Conner did not know why Wendy was mad. Young is the person who purportedly told Walizer about Michelle s father s day present to Todd. The implication of this testimony is that Young made up the story regarding the father s day present because she was angry with Michelle.

Tonya Barfield, Michelle s younger sister, testified she does not have a good relationship with Todd, but from her observations J.W. and Michelle were happy.

Based on Michelle s agreement to allow J.W. into their bed; the amount of Michelle s participation in the aggravated sexual assault as testified to by J.W. or Michelle; her knowledge of previous assaults of J.W. by Todd; her pursuit of additional visitation which increased J.W. s exposure to Todd; and her complete lack of any effort to prevent the aggravated sexual assault of her daughter, we find the proof of Michelle s guilt is not greatly outweighed by contrary proof. We overrule Michelle s second issue.

CONCLUSION

Having found legally and factually sufficient evidence to establish Michelle was a party to the aggravated sexual assault of J.W. by Todd, we overrule both issues.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed December 11, 2002

Do not publish

[CRPM]