William Brady Roe v. the State of Texas ( 2023 )

Opinion filed February 9, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00157-CR
__________
WILLIAM BRADY ROE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CR04494
OPINION
The jury convicted William Brady Roe of indecency with a child by contact,
and it assessed his punishment at confinement for a term of twenty years in the
Institutional Division of the Texas Department of Criminal Justice. See TEX. PENAL
CODE ANN. § 21.11(a)(1) (West 2019). Appellant challenges his conviction in three
issues. We affirm.
Background Facts
The alleged victim in this case is S.R., Appellant’s daughter. She was
eighteen at the time of trial. The indictment alleged that Appellant, with the intent
to arouse or gratify his sexual desire, engaged in sexual contact with S.R. by touching
her genitals “with a manufactured sexual device” when she was a child younger than
seventeen.
Linda McGinnis is the technology director at the high school that S.R.
attended. The school district has a software program known as “Bark” that monitors
students’ computer activities on school computers. McGinnis receives a weekly
report from the Bark program that alerts her to student computer activities that may
be of concern to school officials. On October 18, 2019, the Bark report detected a
document written by S.R. that it labeled with a “severe” level of concern. The
document was titled “What I will never say,” and it contained eight pages that
detailed disturbing allegations made by S.R. about Appellant.
After McGinnis read the document, she provided it to the school counselor,
Laura Hermesmeyer. Hermesmeyer then alerted the principals at the school and the
school resource officer, Officer Elda McDonald of the Comanche Police
Department, of the document. Hermesmeyer, Officer McDonald, and the school
principals met with S.R. that afternoon. Officer McDonald testified that the purpose
of the meeting was to ask S.R. if the allegations in the document were true. After
S.R. indicated that the matters in the document were true, Officer McDonald
continued the investigation further by alerting other officers and S.R.’s mother.
S.R. testified that she began living with Appellant when she was thirteen when
he moved out of the house that he shared with her mother. She testified that he
routinely provided her with alcohol that they would drink together to the point that
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S.R. would become drunk. She described an incident when he had her try to perform
a handstand while she was only wearing panties and a large t-shirt.
She testified about another incident when she and Appellant were sitting on
the back porch of her mother’s house drinking alcohol and smoking cigarettes.
Appellant told her to take off her shirt, which she did, stripping to her panties, at
which point she performed a lap dance for Appellant. Appellant asked S.R. to touch
her breast, but she refused. She and Appellant also walked on a side road while she
was partially clothed. She estimated that she was thirteen or fourteen when this
event occurred.
S.R. testified that Appellant was a truck driver and that she would sometimes
accompany him in his truck. S.R. and Appellant would sleep together in the truck,
and sometimes they would sleep together in his bed at his house—during which
times they would cuddle. S.R. testified that most of the episodes involving Appellant
occurred at night after he had been drinking. Sometimes Appellant would provide
S.R. with marihuana that they would use together. S.R. also testified that sometimes
she and Appellant would go to “XXX shops.”
The incident giving rise to the offense for which Appellant was convicted
occurred after S.R. and Appellant went to a Spencer’s store and purchased a vibrator.
S.R. testified as follows:
And on our way back, he asked me to use it. And I told him no. So he
opened it and he put it between my thighs and he like turned it on and
he was using it on me, but it wasn’t in me. So it was just next to my
thighs.
She further testified that he put the vibrator against her genitalia for “a few seconds.”
S.R. stated that Appellant asked her if she enjoyed it, to which she replied, “no, it
hurt.” S.R. also testified that Appellant handed the vibrator to her and told her to
use it, but that she declined.
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S.R. also testified about other times that Appellant purchased other sex toys
for her, including a whip, other vibrators, as well as sex magazines. She testified
that they whipped each other with the whip and looked at the magazines, which she
described as “bondage, whips, ropes, chains, like hardcore.” S.R. also testified that
she watched porn with Appellant, doing so while topless. Appellant also offered to
pleasure S.R. for money, and he drove her around one evening when she performed
oral sex on a boy.
S.R. testified that she did not know why she wrote the document found by the
Bark program and that she just started writing it one day. She did not intend for
anyone to find it. S.R. also testified that she had not told anyone else about the
matters covered in it other than the drinking with Appellant. Assistant Principal
Angela Askew and Hermesmeyer testified that S.R. was sad and upset at the initial
meeting when they talked to her about the document. S.R. testified that she “shut
down” at the meeting.
Investigator Ernest Hastings of the Comanche Police Department met with
Appellant on the afternoon of the meeting with S.R. Investigator Hastings’s
recorded interview of Appellant was played at trial. During the interview, Appellant
denied doing anything with S.R. that was “a sexual thing.” He also indicated that he
provided S.R. with alcohol, marihuana, and vibrators because he preferred that she
learn about those things from him.
Investigator Hastings also obtained consent from Appellant to search his
home and his cell phones. Officers found a whip, handcuffs, several vibrators, and
two “fetish” magazines in S.R.’s bedroom inside Appellant’s home. A search of one
of Appellant’s cell phones revealed that Appellant had viewed materials described
as “incest porn” and “daddy/daughter porn.”
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Analysis
Sexual Contact Can Occur Through the Use of an Object to Touch a Minor
Appellant presents three issues on appeal. His first two issues are related
because they are based on the same argument—that touching a minor’s genitals with
an object cannot constitute indecency with a child by contact. As noted previously,
the indictment alleged that Appellant engaged in sexual contact with S.R. by
touching her genitals “with a manufactured sexual device” when she was a child
younger than seventeen. In his first issue, Appellant challenges the sufficiency of
the evidence supporting his conviction. In his second issue, Appellant contends that
the indictment was void because it failed to allege an offense.
We first address Appellant’s second issue because it was not preserved for
appellate review. “If the defendant does not object to a defect, error, or irregularity
of form or substance in an indictment or information before the date on which the
trial on the merits commences, he waives and forfeits the right to object to the defect,
error, or irregularity and he may not raise the objection on appeal or in any other
postconviction proceeding.” TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005);
see Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App. 2018). This has been
the law in Texas since 1985, when Article 1.14(b) was amended to require a
defendant to object to substantive defects in the indictment prior to trial. Studer v.
State, 799 S.W.2d 263, 266–72 (Tex. Crim. App. 1990) (discussing legislative
history of amendment); see also Walker v. State, 594 S.W.3d 330, 339 (Tex. Crim.
App. 2020) (“Prior to 1985, a defect in the substance of an indictment was said to be
‘fundamental error’ because such a defect failed to confer jurisdiction upon the trial
court, and any conviction had upon that instrument was therefore void.”).
Accordingly, an alleged defect in an indictment no longer constitutes fundamental
error, and it must be objected to prior to trial in order to preserve the complaint for
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appellate review. See CRIM. PROC. art. 1.14; Walker, 594 S.W.3d at 339; Studer,
799 S.W.2d at 267; Thompson v. State, No. 03-20-00080-CR, 2021 WL 1418987, at
*6 (Tex. App.—Austin Apr. 15, 2021, pet. ref’d) (mem. op., not designated for
publication). Thus, Appellant has not preserved the second issue for appellate
review.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the 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 offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence
admitted at trial, including pieces of evidence that may have been improperly
admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s
role as the sole judge of the witnesses’ credibility and the weight witness testimony
is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict and defer
to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
We measure sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
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(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 adequately describes the particular offense for which the defendant was
tried.” Id.A person commits the offense of indecency with a child by contact if he
“engages in sexual contact with [a] child” younger than seventeen years of age.
PENAL § 21.11(a)(1). “Sexual contact” means “any touching by a person, including
touching through clothing, of the anus, breast, or any part of the genitals of a child,”
if the act is “committed with the intent to arouse or gratify the sexual desire of any
person.” Id. § 21.11(c)(1).
Appellant contends that sexual contact could not have occurred as alleged
because the statute “does not include using an object.” Indecency with a child is a
conduct-oriented offense that criminalizes three separate types of conduct—
touching the anus, touching the breast, and touching the genitals of a child with the
requisite mental state. Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007).
The definition of “sexual contact” provides that it occurs by “any touching.” PENAL
§ 21.11(c)(1). Accordingly, the statutory definition of sexual contact does not
preclude it from occurring by the use of an object. The focus of the definition of
sexual contact is “where the touching occurred” rather than “how the touching was
effectuated.” See Pizzo, 235 S.W.3d at 717. How the touching was effectuated is
not an essential element of the offense. State v. Shuck, 222 S.W.3d 113, 116 (Tex.
App.—Houston [14th Dist.] 2006, no pet.); Hilliard v. State, 652 S.W.2d 602, 605
(Tex. App.—Austin 1983, pet. ref’d, untimely filed).
We addressed a similar contention in Tienda v. State. 479 S.W.3d 863, 873–
74 (Tex. App.—Eastland 2015, no pet.). The appellant in Tienda asserted that sexual
7
contact could not have occurred because there were multiple layers of clothing or
fabric separating his body and the minor victim’s body. Id. at 873. We cited
Resnick v. State for the proposition that “the essence of the act of touching ‘is to
perceive by the sense of feeling.’” Id. (quoting Resnick v. State, 574 S.W.2d 558,
560 (Tex. Crim. App. [Panel Op.] 1978)). Our conclusion in Tienda is applicable to
the circumstances in this case—touching for the purpose of sexual contact occurs
when it is perceived or felt by the person that is touched. See id. at 873–74; see also
Resnick, 574 S.W.2d at 560. Thus, irrespective of the manner in which a defendant
touches the anus, breast, or genitals of a minor victim, if it was felt by the victim and
done with the requisite mental intent, it constitutes indecency with a child by contact.
As briefed, Appellant solely bases his challenge to the sufficiency of the
evidence on his contention that he could not have committed the offense of
indecency with a child by contact through the use of an object to touch the genitals
of S.R.—a contention that is incorrect. The evidence was sufficient to establish
indecency with a child by sexual contact in Tienda because the victim testified that
she felt the appellant’s penis when he was lying on top of her. Id. at 874. The same
type of evidence is present in this case—S.R. testified that Appellant touched her
genitals through her clothing with a vibrator and that she felt it. To the extent that
there were any conflicts in the evidence with respect to the offense with which
Appellant was charged, we presume that the factfinder resolved the conflicts in favor
of the verdict and defer to that determination. See Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
With respect to evidence of the requisite mental state, direct evidence of what
an accused intended at the time he committed the offense is rare. See Moore v. State,
969 S.W.2d 4, 10 (Tex. Crim. App. 1998) (“Mental states are almost always inferred
from acts and words.”). With respect to a defendant’s intent to arouse or gratify his
8
sexual desire, his intent can be inferred from the act itself. McKenzie v. State, 617
S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). Here, placing a vibrator on a
minor’s genitals can hardly be considered an innocent activity. See Montgomery v.
State, 810 S.W.2d 372, 396 (Tex. Crim. App. 1990). Viewing all of the evidence in
the light most favorable to the verdict, we conclude that any rational trier of fact
could have found the essential elements of indecency with a child by contact beyond
a reasonable doubt. See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638. We
overrule Appellant’s first and second issues.
Admissibility of Internet Search History
In his third issue, Appellant asserts that the trial court erred by overruling his
objections to the admission of the web history extracted from his cell phone. As
noted previously, the web history revealed searches of sites containing incest
pornography involving daddy/daughter pornography. Appellant contends that the
search history was not relevant, that it was character conformity evidence that was
inadmissible under Rule 404(b), and that its admission violated Rule 403. See
TEX. R. EVID. 403, 404(b). The State contends that the search history was relevant
to establish Appellant’s intent and to rebut his statements that his actions with S.R.
were not for a sexual purpose.
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
We will uphold a trial court’s evidentiary ruling on appeal if it is correct on any
theory of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114,
125–26 (Tex. Crim. App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—
Eastland 2015, no pet.).
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To be admissible at trial, evidence must be relevant. TEX. R. EVID. 402.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” TEX. R. EVID. 401. The trial court did not abuse its
discretion by determining that the search history was relevant. As noted previously,
to convict Appellant of the offense as charged in the indictment, the jury was
required to find that Appellant touched S.R.’s genitals with the intent to arouse or
gratify his sexual desire. See PENAL § 21.11(c)(1). The search history was relevant
to this question, and it served to rebut Appellant’s statements during his recorded
interview disclaiming a sexual intent.
Rule 404(b)(1) prohibits the admission of evidence of a crime, wrong, or other
act to prove a person’s character to show that, on a particular occasion, the person
acted in conformity with that character. TEX. R. EVID. 404(b)(1). Rule 404(b)(2)
permits the admission of such evidence for other purposes, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
lack of accident. TEX. R. EVID. 404(b)(2). The issue of whether extraneous offense
evidence has relevance apart from character conformity, as required by Rule 404(b),
is a question for the trial court. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim.
App. 2009). Under Rule 404(b), “[t]he trial judge must conclude that the evidence
tends in logic and common experience to serve some purpose other than character
conformity to make the existence of a fact of consequence more or less probable
than it would be without the evidence.” Montgomery, 810 S.W.2d at 391. We must
affirm the trial court’s ruling if that ruling is within the zone of reasonable
disagreement. Id. Consequently, we review a trial court’s ruling on the admissibility
of extraneous offenses for an abuse of discretion. De La Paz, 279 S.W.3d at 343.
Here, the trial court did not abuse its discretion by overruling Appellant’s
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Rule 404(b) objection because the search history was relevant to a material, non-
propensity issue—Appellant’s intent with respect to his conduct with S.R.
Under Rule 403, a trial court may exclude relevant evidence if its probative
value is substantially outweighed by the danger of “unfair prejudice, confusing the
issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim.
App. 2009). “Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial.”
Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v. State, 347
S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is unfairly
prejudicial when it has the undue tendency to suggest an improper basis for reaching
a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render, 347
S.W.3d at 921.
In reviewing a trial court’s determination under Rule 403, a reviewing court
is to reverse the trial court’s judgment “rarely and only after a clear abuse of
discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting
Montgomery, 810 S.W.2d at 392). When conducting a Rule 403 analysis, the trial
court must balance the following factors:
(1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest [a] decision on an improper
basis, (4) any tendency of the evidence to confuse or distract the
jury from the main issues, (5) any tendency of the evidence to be
given undue weight by a jury that has not been equipped to evaluate
the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of
time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). These
factors may well blend together in practice. Id. Rule 403, however, does not require
11
that the balancing test be performed on the record. Greene v. State, 287 S.W.3d 277,
284 (Tex. App.—Eastland 2009, pet. ref’d). In overruling a Rule 403 objection, the
trial court is assumed to have applied a Rule 403 balancing test and determined that
the evidence was admissible. Id.The first Gigliobianco factor focuses on the inherent probative force of the
proffered evidence. As the Court of Criminal Appeals explained in Gigliobianco,
“probative value” is more than just relevance. 210 S.W.3d at 641. It refers to how
strongly an item of evidence “serves to make more or less probable the existence of
a fact of consequence to the litigation[,] coupled with the proponent’s need for that
item of evidence.” Id. We have already addressed the relevance of the challenged
evidence to show Appellant’s mental state when engaging in the conduct with which
he was charged. The search history rebutted Appellant’s denials in his recorded
interview. With respect to the State’s need for the evidence under the second
Gigliobianco factor, as is often the case with sexual offenses against children, the
State’s case pitted S.R.’s version of the events against Appellant’s denials.
Appellant denied during his recorded interview that any conduct of a sexual nature
occurred between Appellant and S.R. Thus, the evidence of the search history
rebutted Appellant’s denials and was relevant to the issue of Appellant’s mental
state.
The remaining Gigliobianco factors focus on the potential negative effects of
the proffered evidence. The third factor focuses on the tendency of the evidence to
suggest a decision on an improper basis. Evidence of a sexual nature involving
children or family members is inherently inflammatory and prejudicial. See
Montgomery, 810 S.W.2d at 397; Newton v. State, 301 S.W.3d 315, 320 (Tex.
App.—Waco 2009, pet. ref’d). We note that the trial court included a limiting
instruction in its charge to the jury regarding the jury’s consideration of extraneous
12
matters. We presume the jury obeyed this instruction. See Resendiz v. State, 112
S.W.3d 541, 546 (Tex. Crim. App. 2003) (appellate courts presume that the jury
follows instructions). Thus, the trial court took measures to mitigate the potential
improper influence of the challenged evidence. See Gaytan v. State, 331 S.W.3d
218, 228 (Tex. App.—Austin 2011, pet. ref’d); Newton, 301 S.W.3d at 320.
The fourth factor focuses on the potential of the proffered evidence to confuse
or distract the jury from the main issues. This factor weighs in favor of admission
because the evidence was probative of the nature of the relationship between
Appellant and S.R. and his mental state when engaging in the charged conduct. The
fifth factor focuses on the potential of the proffered evidence to mislead the jury.
We have previously noted that the trial court gave a limiting instruction. Finally, the
sixth factor focuses on the time needed to present the proffered evidence and whether
it is cumulative of other evidence. The evidence of the search history only spanned
a few pages of the reporter’s record, and it was not cumulative of other evidence.
In summary, the evidence of the search history was prejudicial. However,
Rule 403 contemplates excluding evidence only when there is a “clear disparity”
between the offered evidence’s prejudice and its probative value. Hammer v. State,
296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d
192, 202 (Tex. Crim. App. 2001)). Considering the standard of review, the
presumption favoring admissibility of relevant evidence, and the Gigliobianco
factors, we cannot conclude that the trial court abused its discretion in overruling
Appellant’s Rule 403 objection. See Hammer, 296 S.W.3d at 568 (“Because
Rule 403 permits the exclusion of admittedly probative evidence, it is a remedy that
should be used sparingly, especially in ‘he said, she said’ . . . cases that must be
resolved solely on the basis of the testimony of the complainant and the defendant.”
(footnote omitted)). We overrule Appellant’s third issue.
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This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
February 9, 2023
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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