Kelly McKinley Shelton v. State ( 2018 )

NUMBER 13-17-00221-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KELLY MCKINLEY SHELTON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 207th District Court
of Comal County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Kelly McKinley Shelton appeals his conviction for continuous sexual
abuse of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw
through 2017 1st C.S.). By one issue, Shelton argues the evidence was legally
insufficient to support his conviction. We affirm.
I. BACKGROUND1
Shelton is the maternal grandfather of K.L. and of her older half-sister K.R.2
Originally, Shelton and his wife Vicki had custody of both girls. This changed, however,
when R.S., K.R.’s father, regained managing conservatorship of K.R. K.L., on the other
hand, remained in the custody of Shelton and his wife, with K.L.’s mother partly involved.
On October 22, 2013, Shelton was indicted on two counts. Count one was for
continuous sexual abuse of a child, and it alleged that he committed two or more of the
underlying actions of sexual abuse during a period that was thirty days or more: (1)
aggravated sexual assault of K.L. resulting from the penetration of K.L.’s mouth by
Shelton’s sexual organ; (2) aggravated sexual assault of K.L. resulting from the contact
of K.L.’s mouth with Shelton’s sexual organ; (3) indecency with a child resulting from the
touching of K.L.’s genitals by Shelton’s hands or fingers; and (4) indecency with a child
resulting from the touching of K.L.’s body with Shelton’s genitals. See id. §§ 21.02, 21.11,
22.011, 22.021 (West, Westlaw through 2017 1st C.S.). Count two alleged two instances
of aggravated sexual assault in two paragraphs: (1) Shelton caused the penetration of
K.L.’s mouth by his sexual organ; and (2) Shelton caused his sexual organ to contact the
mouth of K.L. See id. § 22.021.
Shelton pleaded not guilty and proceeded to trial. By the time of trial, Shelton had
filed for divorce and ceased living with K.L., K.L.’s mother, and K.L.’s maternal
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was
transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
2 We use aliases to protect the minors’ identities. See TEX. R. APP. P. 9.9 cmt. (“The rule does not
limit an appellate court’s authority to disguise parties’ identities in appropriate circumstances in other
cases.”); Salazar v. State, __ S.W.3d __ , __ n.1, No. 13-17-00579-CR, 2018 WL 3655572, at *1 n.1 (Tex.
App.—Corpus Christi Aug. 2, 2018, no pet. h.).
2
grandmother (Vicki) at the home where the alleged incidents occurred. The following
individuals testified before the jury: R.S., K.L., K.R., Tara Kvanvig-Garza, and Shelton.
We will summarize the relevant parts of each witness’s testimony.
A. R.S.
R.S. testified that he is the biological father of K.R. and that he looks after K.L. as
if she was his biological daughter. According to R.S., shortly after K.R. was born, he was
sent to jail for a drug-related offense and subsequently went into a drug rehab program
for a total period of about ten months. While he was away, K.R.’s mother became
pregnant with K.L. After his release, R.S. worked towards regaining full custody of K.R,
which he achieved when K.R. was three years old, and she began living with him full-
time. After R.S. gained full custody of K.R., the sisters (K.L. and K.R.) continued to spend
time together either at Shelton’s home or at R.S.’s home.
When K.R. was five, sometime in 2009, R.S. learned that Shelton had been
showering with K.R. and K.L.; K.L. was almost three years old at the time. R.S. spoke to
Vicki and told her that he did not want Shelton to take showers with the girls. Vicki told
R.S. that Shelton was wearing shorts when he was in the shower with them, and R.S.
testified that he felt as if the matter was resolved at that point.
In April of 2012, K.L. was visiting K.R. when R.S. went into the bathroom to take a
shower. While R.S. was in the shower, K.L. came into the bathroom and tried to pull back
the shower curtain. R.S. told K.L. that she was not allowed to do that and asked her why
she would do so, and K.L. responded that her grandfather let them see him in the shower.
R.S. explained to K.L. that it was not appropriate for her to see him in the shower, which
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caused her to get mad, slam the door, and exit the bathroom. R.S. testified that K.L. was
“visibly mad” and that she was five or six at the time of this incident.
R.S. also spoke with K.R., and K.R. told him that Shelton had been showering with
both girls “since way back before the first showering incident that [R.S.] was aware of.”
K.R. also told R.S. that Shelton was not wearing shorts in the shower; this was the first
time R.S. heard that Shelton showered naked with the girls. K.R. was “about seven years
old” at the time she revealed this to R.S., and she also informed him that Shelton would
urinate in the shower while he and the girls were in there. R.S. testified that, at the time
he found out Shelton was showering naked with the girls, the girls were capable and old
enough to wash and clean themselves without help. R.S. stated that, in his eyes, there
was no reason for a grown man to shower with K.R. and that K.R. was able to completely
shower independently and clean herself since “she was three or four.” R.S. testified that
when K.L. would stay over while visiting K.R., R.S. would run a bath for her, and K.L.
would not need any other assistance, “[b]esides yelling at me for a towel[.]” After R.S.
learned of the naked showers with Shelton, K.R. did not return to visit K.L. at Shelton’s
home while Shelton continued to live there. R.S. filed a report regarding this incident with
the police, and the girls were eventually taken for forensic interviews.
B. K.L.
K.L. was ten years old at the time of trial. She testified that she now lives with her
mom and her grandmother. At first, K.L. testified that she could not remember the time
when she lived with Shelton and that she “forgot.” She also could not remember the last
time she had seen Shelton or whether she had ever talked to a “lady” about her
relationship with her grandfather.
4
K.L. was then shown a video of her interview with Sara Cantu3 to refresh her
memory. After watching the video, K.L. testified that she did in fact remember the time
when Shelton lived with them. She said she remembered Shelton’s bedroom was
upstairs and that her grandmother’s bedroom was downstairs. She also said she
remembered seeing Shelton’s private parts. The State then asked, “Can you tell us about
that occasion?”, and K.L. answered, “Do we have to tell that story?” Immediately after,
K.L. stated that she did not remember that part. K.L. acknowledged that she did not want
to talk about the things discussed between her and Cantu in the video.
When asked to described Shelton’s private parts, K.L. stated “it was big” and that
it looked like a “wiener.” K.L. stated she never touched Shelton’s private parts and that
Shelton never touched her with his private part. K.L. said she did not remember Shelton
putting his private part up to or in her mouth and, when asked by the State whether she
remembered telling anyone that Shelton had done so, K.L. answered “no.” K.L. finished
her testimony by saying that she did not remember: anyone in the bathroom when she
would shower, Shelton showering with her, or K.R. coming over to visit while Shelton was
still living in the house.
C. K.R.
K.R. was twelve years old at the time of trial. She testified that she would go over
to Shelton’s house every other weekend while Shelton lived there. K.R. explained that
she had to stop going over to Shelton’s house because “grandpa showered with me and
my sister.” She said she remembered that Shelton was present when she and K.L.
3 It is unclear from the record who Sara Cantu is, but, given the context, it seems she performed
one of the forensic interviews with K.L. or was one of the outcry witnesses to whom K.L. disclosed some
allegations of sexual abuse involving Shelton.
5
showered and that “he would wash us sometimes and he would become quickly
undressed. That’s about it.” K.R. testified that Shelton would touch her or K.L. “only to
wash” them. K.R. testified Shelton touched her private areas used for number one and
number two, as well as her chest area. K.R. stated Shelton touched K.L. in the same
areas.
When asked if K.R. ever touched Shelton while in the shower, she answered
“probably on his back to wash it, but that’s pretty much what I remember.” She explained
that she meant she would wash his shoulders by stepping on a stool. K.R. stated she did
not remember having to wash his front part and that K.L. would maybe “wash his lower
leg or something.” The State asked K.R. if she would do most of the washing, and K.R.
answered “Not mostly. We’d do it together.” K.R. testified that the showers happened
more than once and stated “I think maybe every day—like maybe every day whenever
we—it was like shower time.” She explained that this occurred in the summer time and
went on into the fall when she was in school.
K.R. remembered telling her dad about the showers and “him getting all worried
and freaked out and then calling Grammy, I’m pretty sure, or one of them.” K.R. recalled
giving an interview at a Children’s Advocacy Center (CAC) and stated she was nervous
to testify at the trial court because Shelton had threatened her. K.R. explained Shelton
pointed a handgun at her, told her that he didn’t want her to tell anyone about the showers,
and threatened to use the gun if she did. When asked by defense counsel about why she
didn’t mention the gun threat during her interview at the CAC, K.R. responded it was
because she was worried to talk about it.
D. Tara Kvanvig-Garza
6
Garza is a licensed professional counselor who sometimes provides counseling
services for Child Protective Services. She was K.L.’s counselor after R.S. filed the police
report. Garza met with K.L. for a total of forty-nine sessions during a period of a year and
a half.4
Garza explained that K.L. could distinguish truth from lies. She explained K.L. was
exhibiting anxiety, fear, and depression at school and at home. According to Garza, K.L.
had “pretty high anxiety, reports of nightmares, difficulty sleeping through the night,
bathroom behaviors that were causing concern for the foster parent.”
As to the eighth session between Garza and K.L., which occurred on January 17,
2013, the following exchanged occurred:
[State]: What was [K.L.] dealing with as far as emotional issues or
signs or symptoms at that time?
[Garza]: General mistrust of people, reports of feeling scared, feeling
like her environment was out of control. . . . She had a
nightmare. She said she wanted to draw about it. It was
about a ghost coming up to take her away. She disclosed
more about that, actually began to share more about her
dreams and what was happening rather than saying she was
having them. She started to be more specific about what was
occurring in the dreams.
[State]: Okay. Was there any significance that you saw in the dreams
as they were being reported?
[Garza]: Yes, sir. In her dreams she specifically reported a big bear,
stuffed animal character, that she used to show that it was in
4 At a hearing outside the presence of the jury, K.L. recanted the allegations of sexual abuse by
Shelton that she disclosed to Garza; K.L. stated “I might have said that, but I don’t think that’s true because
all kids lie at a young age.” During Garza’s testimony, defense counsel objected to Garza’s testimony
regarding these allegations on 403 and 803 grounds. See TEX. R. EVID. 403, 803. At another hearing
outside the presence of the jury, the court noted a lack of sources corroborating these allegations,
statements made before the presiding judge in a separate but related civil case, and the fact that K.L. used
the word “lie.” The trial court questioned the reliability of Garza’s testimony as to who the abuser was in
the allegations of sexual abuse disclosed to her and sustained defense counsel’s objections, but it allowed
Garza to testify as to the red flags of sexual abuse she observed during her counseling of K.L.
7
her dreams. It would sniff and lick her genitalia. She used the
bear to act out what was occurring in her dreams.
[State]: Would this be a common type of report for a five-year-old
child?
[Garza]: No, sir.
In regard to their subsequent session on January 31, 2013:
[State]: Okay. Can you tell us what happened during the course of
that session.
[Garza]: [K.L.] was worried about getting in trouble for making a mess
at school with the toys, but she chose to play with the—with
the figurines. . . . She chose mostly to play with animals. A
lot of times she would cringe or shake off her hands when she
touched the people figurines. That was something that was a
continual thing for her. She had play things that were
becoming more advanced, more developed. She would set
up situations where there was a vulnerable play item that had
to be rescued. Usually one of the dangerous creatures would
become a friend or one of the people who was rescuing would
later become a dangerous creature. So there was this theme
of thwarted rescue happening over and over.
Then, regarding a session on February 7, 2013:
[State]: What happened during the course of your February 7th
session?
[Garza]: We—[K.L.] chose a release game which involved using bean
bags to toss into a goal or a target while she was identifying
triggers, things that were causing anger, fear, sadness, worry,
happiness. . . . She talked about nightmares of having
someone come into her room again at nighttime. . . . She, in
this section, talked about feeling angry at her grandparents for
fighting. She was able to explain feeling like they fought all
the time, particularly over her. She was able to say that the
things that they fought about is where [K.L.] would sleep,
where she would be.
Garza also testified about the red flags of sexual abuse which she observed during
her interactions with K.L.:
8
[State]: Specifically with regard to [K.L.], were there any other red
flags of abuse that you saw?
[Garza]: Other than the outcry, she also demonstrated sexual acting
out, sexual aggression, particularly towards the sister;
urinating on her sister; other bathroom behaviors that could
be a behavioral indication of victimization.
[State]: Are those bathroom behaviors identified as high indicators as
well?
[Garza]: Yes, sir.
[State]: Were there any other high indicators that you saw?
[Garza]: Just in general sexual knowledge, awareness of anatomy of
the opposite gender and things that occur during sexual
experiences, during—with the anatomy.
...
[State]: So specifically with regard to [K.L.], what signs or behaviors
of a moderate level of probability did you note?
[Garza]: She had significant sleep disturbance, difficulty falling asleep,
staying asleep, as well was frequent waking with nightmares.
She also had the enuresis, wetting the bed at nighttime
frequently. She demonstrated self-destructive behaviors, that
self-sabotage and risk-taking, impulsive and destructible,
difficult settling in, kind of a hypervigilant state, always looking
and watching, oversensitive to sounds, oversensitive to
activities around her, unable to—to tune those out.
[State]: Were there any other lower-level indicators that you noted?
[Garza]: Cruelty to the animal that was in the house, to the pets; school
difficulties. She had difficulty being able to function
academically as well as social difficulties relating to peers.
E. Directed Verdict
The State’s case in chief finished with Garza’s testimony, and Shelton moved for
a directed verdict on all matters before the jury. The trial court granted Shelton’s motion
for directed verdict as to the first, second, and fourth allegation contained in count one
9
and as to both paragraphs under count two. Thus, the only remaining charge before the
jury alleged that, on two or more instances during a period longer than thirty days, “Kelly
Shelton did then and there, with the intent to arouse or gratify the sexual desire of any
person, engage in sexual contact with the said [K.L.] by touching the genitals or part of
the genitals of [K.L.] with the hands or fingers of said Kelly Shelton.”
F. Shelton
Shelton testified he is a former police officer and air force firefighter. He confirmed
that he and his wife had custody of K.L. and K.R. and that the girls had lived with them.
He testified he had a pool at his home; that he would go swimming with both girls because
“[t]hey were babies”; and that he would take a shower with the girls after getting out of the
pool. Defense counsel questioned Shelton about the surrounding circumstances:
[Counsel]: Where would Vicki be?
[Shelton]: In the master bathroom, but she would be waiting for
me to finish rinsing the girls—washing the girls off. I’d
pass them out to her and she’d take them one at a time,
dry them off, start blow-drying their hair, getting them—
it’s a chemical pool, so you’ve got to rinse that off when
you get out of the pool.
[Counsel]: So Grandma or Vicki would have been present while
these showers were going on?
[Shelton]: Yes, sir.
[Counsel]: Is there any time that you would have ever been naked
while you were rinsing them off?
[Shelton]: I believe so, yes.
[Counsel] Okay. I have to simply ask you, the—both girls have
testified that you washed them—that you washed their
genitalia. True? Yes?
10
[Shelton]: Well, yes, but when it—when it came down to their
lower body parts, I just—I—I even testified in the first
case, it’s kind of like the soap and water is running by.
It’s got to clean it, okay? It's that—that—it’s a guy
thing, made me nervous, but I would still bathe my
grandbabies.
[Counsel]: Did you ever touch either one of those girls in the
shower for any other reason other than to wash them?
[Shelton]: No, sir.
[Counsel]: Did you ever touch the genitalia of either one of those
girls for your own sexual gratification?
[Shelton]: No, sir. Heavens no.
During cross-examination, Shelton admitted that there were occasions when he
and the girls showered naked together. Shelton also acknowledged that he did not reveal
that he had showered naked with the girls to the detective who investigated the case;
instead, when asked by the detective about the showers, Shelton told the detective he
always wore a swimsuit. During questioning, the State emphasized this change in
Shelton’s story:
[State]: Now, sir, during the course of that conversation with
Detective Campbell, do you recall telling him explicitly
that you always had a bathing suit on when you would
shower with the girls?
[Shelton]: Well, 99—yeah, I did tell him I had a bathing suit on,
but—
[State]: You were absolutely certain—
[Shelton]: The girls would come in—let me explain. The girls
would come into the shower after swimming. We’d
take them in the house. I start bathing them and I had
my swimsuit on. You can ask them what color it was.
It was bright red. And then as I got them done, I’d be
taking my swimsuit off. And I’d let Vicki know, hey, I’m
going to take—take my shower now.
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[State]: Okay. So are you now telling us that you would only
remove your swimsuit after they had left the shower?
[Shelton]: Sometimes, yes. Sometimes probably no. This—it’s
quite a while back.
[State]: Sure. And Detective Campbell was questioning you
specifically on what was going on in that shower; right?
[Shelton]: Yes, he was.
[State]: Okay. And at no point did you tell him or to him that
you might have been naked during that; right?
[Shelton]: I don’t think I did, no.
[State]: And you were crystal clear that you always had your
bathing suit on; right?
[Shelton]: 99 percent of the time I did, yes. There were occasions
I didn’t, but—
[State]: Okay. What I’m getting at is what you told Detective
Campbell is different than what you’re testifying to here
today; right?
[Shelton]: Yes, probably is. To some degree, yes, it is.
[State]: Well, explicitly [sic] about whether or not you were
naked, that's different.
[Shelton]: Okay. Okay.
[State]: You also told Detective Campbell that—and you really
emphasized that you were extremely embarrassed
about this whole deal; right?
[Shelton]: Yes, I am—I’m still very embarrassed about it. This is
ludicrous. It’s insane.
[State]: Why were you not completely honest with Detective
Campbell in making sure to tell him everything that
you’re telling the jury here today?
[Shelton]: Well, this was a phone conversation and I was at work
at the time. I’m dealing with Rex Campbell on the
phone. I’m dealing with customers.
12
[State]: Well, you took the extra step not just of not talking
about it, but to actually make an affirmative
representation that you always had your swimsuit on;
right?
[Shelton]: Okay. I may have said that at the time.
Shelton stated that K.R. and K.L. were “[p]robably three and five-ish, four and five-
ish, something like that[,]” whenever he showered with them after swimming in the pool,
but he also acknowledged that this came to light when they were five and seven. Shelton
testified he did not remember anyone, in particular R.S., telling him or Vicki that it was
inappropriate for the girls to be in the shower with him. He admitted that he owned a
black gun but denied ever showing it to K.R. or threatening her with it.
G. Verdict
The jury found Shelton guilty of continuous sexual abuse of a child and sentenced
him to twenty-five years in the Institutional Division of the Texas Department of Criminal
Justice. This appeal followed.
II. DISCUSSION
A. Standard of Review
When examining the legal sufficiency of the evidence, we consider the combined
and cumulative force of all admitted evidence in the light most favorable to the conviction
to determine whether, based on the evidence and reasonable inferences therefrom, any
rational trier of fact could have found each element of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805,
808 (Tex. Crim. App. 2015). In doing so, we give deference to the responsibility of the
jury as factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw
reasonable inferences from facts. Jackson, 443 U.S. at 319; Villa v. State, 514 S.W.3d
13
227, 232 (Tex. Crim. App. 2017); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d). “Deference to the trier of fact extends to inferences
drawn from the evidence as long as the inferences are reasonable ones supported by the
evidence and are not mere speculation.” Villa, 514 S.W.3d at 232; see Johnson, 419
S.W.3d at 671.
We measure the legal sufficiency of the evidence against the elements of the
offense as defined by a hypothetically correct jury charge for the case. Byrd v. State, 336
S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997) (en banc)). “Such a 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 adequately describes the
particular offense for which the defendant was tried.” Id. (internal quotation marks
omitted). The law as authorized by the indictment must be the statutory elements of the
offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404
(Tex. Crim. App. 2000), overruled in part on other grounds by Gollihar v. State, 46 S.W.3d
243 (Tex. Crim. App. 2001). That is to say, the hypothetically correct jury charge could
not simply quote the language of the statute; rather, it must track the elements of the law
specifically alleged by the indictment. Id. at 404–05.
B. Applicable Law
Texas Penal Code section 21.02 provides that a person commits the offense
of continuous sexual abuse against a child if: “(1) during a period that is 30 or more days
in duration, the person commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more victims; and (2) at the time
14
of the commission of each of the acts of sexual abuse, the actor is 17 years of age or
older and the victim is a child younger than 14 years of age.” TEX. PENAL CODE
ANN. § 21.02(b); Reckart v. State, 323 S.W.3d 588, 597–98 (Tex. App.—Corpus Christi
2010, pet. ref’d). The “acts of sexual abuse” alleged by the State were indecency with a
child.5 Here, the State had to present evidence Shelton touched any part of K.L.’s genitals
with Shelton’s hand or finger, with the intent to arouse or gratify Shelton’s sexual desire,
twice or more over a period that was thirty days or more. TEX. PENAL CODE ANN. §§ 21.02,
21.11 (West, Westlaw through 2017 1st C.S.).
Texas law provides that the testimony of a child sexual abuse victim is sufficient to
support a conviction based on that abuse. Reckart, 323 S.W.3d at 598 (citing TEX. CODE
CRIM. PROC. ANN. art. 38.07 (West, Westlaw through 2017 1st C.S.); Ozuna v. State, 199
S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.)). The victim’s description of
what happened to her need not be precise, and she is not expected to express herself at
the same level of sophistication as an adult. Reckart, 323 S.W.3d at 598; Ozuna, 199
S.W.3d at 606; see Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en
banc). In fact, even if the victim has recanted the allegations, the jury is entitled to credit
the earlier allegations and disbelieve the recanted testimony. Reckart, 323 S.W.3d at
598 (citing Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet.
ref’d)). If a victim recants her outcry, “it is up to the fact finder to determine whether to
5 This is not the exclusive way of committing this offense, but it is the means alleged in the
indictment. See generally TEX. PENAL CODE ANN. §§ 21.11, 22.021 (West, Westlaw through 2017 1st C.S.).
An “act of sexual abuse” under this statute includes aggravated kidnapping, indecency with a child, sexual
assault, aggravated sexual assault, burglary (if the actor intended to commit one of the four previously listed
offenses), sexual performance of a child, trafficking for sexual purposes, and compelling prostitution. See
id. § 21.02(c) (West, Westlaw through 2017 1st C.S.).
15
believe the original statement or the recantation.” Saldana, 287 S.W.3d at 60 (citing
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (en banc)).
In determining the legal sufficiency of the evidence to show Shelton’s intent, and
faced with a record that supports conflicting inferences, we “must presume—even if it
does not affirmatively appear on the record—that the trier of fact resolved any such
conflict in favor of the prosecution, and [we] must defer to that resolution.” Couchman v.
State, 3 S.W.3d 155, 163 (Tex. App.—Fort Worth 1999, pet. ref’d) (quoting Matson v.
State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (en banc)). Finally, direct evidence
and circumstantial evidence are equally capable of supporting a conviction. Tate v. State,
500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Guevara v. State, 152 S.W.3d 45, 49 (Tex.
Crim. App. 2004) (“The lack of direct evidence is not dispositive on the issue of the
defendant’s guilt. Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor.”).
C. Analysis
Shelton argues that (1) there is insufficient evidence that he touched K.L.’s genitals
for the purpose of sexual gratification, and (2) there is insufficient evidence that he did so
on two occasions over a period of more than thirty days.
The specific intent to arouse or gratify the sexual desire of a person can be inferred
from conduct, remarks, or all the surrounding circumstances. Williams v. State, 305
S.W.3d 886, 891 (Tex. App.—Texarkana 2010, no pet.) (citing Couchman, 3 S.W.3d at
163); Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d). An oral
expression of intent is not required, and a defendant’s conduct alone is sufficient to infer
intent. Williams, 305 S.W.3d at 891; see Abbott, 196 S.W.3d at 341; Couchman, 3
16
S.W.3d at 163. There is also no requirement that a defendant’s penis be erect. Abbott,
196 S.W.3d at 341 (citing Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied)). Furthermore, intent can be inferred from the defendant’s
conduct after the incident. Williams, 305 S.W.3d at 891 (citing Couchman, 3 S.W.3d at
163).
Here, the jury heard testimony from K.R. that Shelton touched K.R.’s and K.L.’s
vagina, anus, and chest area while naked in the shower with both girls. During his
testimony, Shelton confirmed that the touching occurred but asserted that it was done for
hygienic purposes. He points to the fact that his wife was nearby; that there was no
evidence that he only showered with the girls when no one was around; that there is no
evidence he made the girls touch him; and that there is no evidence he touched the girls
“in any manner other than to bathe them.” Shelton, however, ignores the other testimony
before the jury.
The jury also heard: testimony from K.L. describing Shelton’s penis as “big” and
that it looked like a “wiener”; testimony from R.S. that the girls did not need any assistance
in the shower and that he told Shelton in 2009 that this conduct was not appropriate;
testimony from K.R. that the showers happened “like maybe every day” from the summer
time until after the start of the school year; testimony from Garza that K.L. evidenced red
flags consistent with sexual abuse; and testimony from K.R. that Shelton threatened her
with a gun if she told anyone about the showers. K.L.’s description of Shelton’s privates
may support the inference that his penis was erect, which, although not a requisite of
showing intent, may be indicative of an intent fueled by sexual gratification. R.S.’s
testimony showed that Shelton committed the same conduct in the past, and, despite
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R.S.’s warning and instruction to stop, he was now accused of the same conduct years
later. Evidence that Shelton committed the same conduct on other occasions is evidence
of intent. Abbott, 196 S.W.3d at 341 (citing Morgan v. State, 692 S.W.2d 877, 881 (Tex.
Crim. App. 1985) (en banc) (extraneous offense evidence that defendant had touched
complainant in same manner on night before the charged offense and on previous
occasions had “indubitable probative value” of defendant’s intent)); see Connell, 233
S.W.3d at 467 (citing Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim. App. 1986) (en
banc) (“Evidence of a common pattern of similar acts is admissible as tending to prove
intent.”)). Shelton’s conduct after the incident, such as the threat he made towards K.R.
or the change in his story, may also be indicative of his intent. See Williams, 305 S.W.3d
at 891; Couchman, 3 S.W.3d at 163–64. Furthermore, Garza’s testimony supported the
allegation that K.L. had been victimized by sexual acts due to the red flags in her behavior,
which may have indicated that the showers or conduct of her grandfather were not
innocent.
Finally, a defendant’s conduct itself is sufficient to infer intent. Williams, 305
S.W.3d at 891; Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no
pet.) (citing C.F. v. State, 897 S.W.2d 464, 472 (Tex. App.—El Paso 1995, no pet.)); see
Abbott, 196 S.W.3d at 341. Here, Shelton, a former police officer, showered naked with
two young girls multiple times during a period spanning at least several months, and he
touched their genitalia and chest area while he showered with them, despite R.S.’s
instruction not to do so years earlier. He then falsely told investigators he was never
naked in the shower. This was sufficient to infer intent to arouse or gratify the sexual
desire of a person when Shelton touched K.L.’s genitals with his hands. See Williams,
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305 S.W.3d at 891; Abbott, 196 S.W.3d at 341 (concluding that the jury could infer
defendant’s intent to arouse or gratify his sexual desire from his act of touching child’s
genitals).
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)
(en banc); Abbott, 196 S.W.3d at 339. It is the jury that accepts or rejects reasonably
equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim.
App. 2011); Abbott, 196 S.W.3d at 339. Here, the jury could have believed Shelton’s
version of events that he did not wash the girls with an intent of sexual gratification, or it
could have believed that he did have an intent of sexual gratification based on the
surrounding circumstances, the testimony from the other witnesses, and his conduct. See
Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (“The court of appeals was
correct when it [concluded] that the jury should be allowed to choose which evidence is
believable.”); Couchman, 3 S.W.3d at 163. The jury could have reasonably believed that
Shelton’s assertion that he was merely bathing the girls was a pretext for sexually
assaulting them. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel
Op.] 1981) (concluding that the jury could infer that McKenzie’s explanation that he had
victim remove her shoes and clothing for an “examination” was a pretext for assault). The
evidence is not legally insufficient merely because the factfinder resolved conflicting views
of evidence in favor of the State. Cain, 958 S.W.2d at 410; Abbott, 196 S.W.3d 339.
Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have found beyond a reasonable doubt that Shelton
touched K.L.’s genitals with his hand with the intent to arouse or gratify his sexual desire.
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See Jackson, 443 U.S. at 318–19; McKenzie, 617 S.W.2d at 216; Abbott, 196 S.W.3d
340–41. Therefore, we reject Shelton’s argument that the evidence was legally
insufficient to support a finding of this element of the offense.
Shelton also argues that there was insufficient evidence to support a finding that
he committed two or more instances of sexual abuse of K.L. during a period longer than
thirty days. Although the exact dates of the abuse need not be proven, the offense of
continuous sexual abuse of a child does require proof that the last abuse occur on at least
the 29th day after the day of the first act. Smith, 340 S.W.3d at 48; see TEX. PENAL CODE
ANN. § 21.02(d); Williams, 305 S.W.3d at 890–91. There is also no requirement that the
victim herself actually testify as to the dates of abuse. See Michell v. State, 381 S.W.3d
554, 561, 564 (Tex. App.—Eastland 2012, no pet.) (noting that city records and the
testimony of a homeowner supported the conclusion that the acts of sexual abuse
occurred for a period of time in excess of 30 days in duration).
Here, K.R. testified that the naked showers which involved her, Shelton, and K.L.
occurred in the summer time and went on into the fall and the school year. K.R. also
testified that the showers occurred “like maybe every day.” R.S. testified that he first
learned Shelton was showering with the girls in 2009 and, even though he did not learn
until 2012 that Shelton was naked in the shower, K.R. testified that Shelton had been
showering naked with the girls “since way back before the first showering incident [R.S.]
was aware of . . . .” Viewing the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that
Shelton committed two or more acts of sexual abuse of K.L. during a period longer than
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thirty days. See Jackson, 443 U.S. at 318–19; Michell, 381 S.W.3d at 561, 564.
Therefore, we reject this argument.
We overrule Shelton’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
29th day of August, 2018.
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