Leticia Bleil v. State , 496 S.W.3d 194 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00120-CR
LETICIA BLEIL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1399860R
----------
OPINION
----------
I. Introduction
The State used the law of parties to convict appellant Leticia Bleil of
continuous sexual abuse of a child under the age of fourteen on the theory that
on multiple occasions over the course of several months, Bleil traded sex with
her twelve-year-old child T. to Thomas Lyle Crick in exchange for drugs and
money. See Tex. Penal Code Ann. § 21.02 (West Supp. 2015). In eight issues,
ranging from suppression of evidence and specificity of the indictment to
sufficiency of the evidence and charge error, Bleil appeals. We affirm.
II. Factual and Procedural Background
Twelve-year-old T. first met twenty-nine-year old Crick when she
accompanied her mother—Bleil—to Crick’s residence to purchase drugs. Upon
arrival, Bleil and Crick retreated into the garage together while T. and her
younger brother remained in the vehicle. Approximately ten minutes later, Bleil
and Crick emerged from the garage and returned to the vehicle. Crick took a
look at T. through the car window, turned to Bleil, and said, “I can make a 14-
year-old girl scream.” Bleil laughed in response.
Later that evening, Crick telephoned Bleil at her home, and after speaking
with Crick for a few minutes, Bleil instructed T. to “pack a little bag” because,
according to Bleil, T. was going to Crick’s house “for babysitting.” T. did as she
was told—she packed a bag with some clothing inside in preparation to go to
Crick’s house for babysitting—even though her mother had not made babysitting
arrangements for her two younger brothers and was not even leaving her house
that evening. Nevertheless, Crick’s mother, Junita, arrived at Bleil’s home to pick
up T. and then drove her to the house where Crick resided. 1 Crick was waiting at
the door upon her arrival.
1
Crick resided at his father’s house at the time.
2
When she first entered the home, T. sat with Crick on the couch, and the
two talked for a while. Eventually, they went into Crick’s bedroom, where they
sat on the bed and continued talking. At this point, T. said she realized that she
would be staying overnight, so she offered to sleep on the floor. Crick declined
her offer, assuring her that he would sleep on the floor instead, but when T. laid
down on the bed, he laid down beside her, where, after having sex with her, he
stayed for the remainder of the night.2
That night marked the first of many evenings over a four-month span that
would begin with Junita delivering T. to Crick’s doorstep and would conclude with
sexual activities, including sexual intercourse, between Crick and T. After that
first evening, Crick introduced T. to methamphetamine and began supplying her
with it to smoke. With his mother’s help, at some point, Crick also provided T.
with “morning-after” pills, which T. would take after having sex with him. 3
Sometimes the next morning, other times days later, Junita would drive T. back
home.4 Crick also had T. take methamphetamine back to her mother.5
2
T. testified that Crick gave her one of his t-shirts to wear, so she went to
bed that evening wearing a t-shirt and panties.
T. testified that sometimes Crick’s mother would take her to “the
3
Walgreens or CVS to go get it,” or Junita “would just bring it.”
4
T. testified that she spent “a lot” of time at Crick’s house—sometimes as
long as a week in duration—during the four-month period. When she stayed at
his house on school nights, she would miss school the next morning if she
arrived home after the school bus had already come and gone. Other times, she
would arrive in time to catch the bus and go to school. T. testified that Junita
never drove her directly to school.
3
On the morning T. arrived home following her first visit to Crick’s home,
Bleil followed T. into her room and asked her if Crick had touched her or done
anything to her. T. responded “no.”6 Bleil never inquired again. Also after that
first occasion, Bleil never again referred to the arrangement between T. and
Crick as “babysitting.”
Four months later, when the police responded to a 911 complaint about a
child at Crick’s residence, T. had been staying at Crick’s house for a period of
several days. T. was described as drowsy, reeking of drugs and still under their
influence, and reluctant to admit to having had sex with Crick when questioned.
Only when her aunt7 threatened to take her to the hospital for an examination did
T. reveal the details about her frequent stays with Crick, the sexual assaults, and
the drug use. Upon examination at Cook Children’s Medical Center, T. tested
positive for chlamydia.
The police conducted a search of Crick’s home, and in his bedroom they
found morning-after pills, condoms, petite- or child-sized lingerie,
5
On at least one occasion, Crick placed methamphetamine intended for
Bleil into T.’s bag and told her to give it to Bleil and to tell her that she “owes 30.”
When T. did so, Bleil “got mad that he . . . put it in [her] bag.”
T. testified that she answered “no” because she was “scared” and Crick
6
had threatened her that something bad would happen if she told anyone. Crick
had also told her that he was a member of the Aryan Brotherhood. He had a
tattoo of Adolf Hitler on his stomach.
T. did not go home to her mother that evening. Instead, T.’s aunt Barbara
7
took T. to her home from the police station.
4
methamphetamine, and drug paraphernalia. After a warrant was issued for his
arrest, Crick, who was on parole at the time, cut off his ankle monitor and fled.
The police questioned Bleil, who gave two interviews during the course of
the investigation, both of which were recorded and portions of which were
admitted into evidence and published to the jury at trial. During these interviews,
Bleil admitted that Crick was her methamphetamine dealer. And, according to
Detective Person, by way of explanation of the nature of the relationship between
Crick, T., and herself—in an account that turns the commonly-understood
concept of babysitting on its head—Bleil relayed that, as Crick had once
explained to his father, Crick was paying Bleil so that Crick could babysit T.8
Detective Person testified that when asked if she had ever received drugs in
return for sending T. to Crick’s house, Bleil nodded her head up-and-down,
indicating yes. In her audio-recorded statement, Bleil agreed that she received
drugs and money after sending her child to Crick, but she denied the existence of
an arrangement to that effect, stating that she never asked him what the drugs
and money were in exchange for.
8
The second interview is the subject of Bleil’s suppression motion. Upon
further questioning during that interview, Bleil acknowledged that this
arrangement made no sense.
Bleil moved to suppress her statements as involuntary—a result of
improper promises and inducements by law enforcement and without the waiver
of her rights to counsel and to remain silent and not make a statement. The trial
court overruled the motion.
5
Bleil was charged with continuous sexual abuse of a child under the age of
fourteen. The jury convicted Bleil, and the trial court assessed her punishment at
thirty years’ confinement.
III. Sufficiency
In her first issue, Bleil argues that the trial court committed harmful error by
overruling her motion for instructed verdict, asserting that there was insufficient
evidence as a matter of law that she was a party to the offense.
A. Standard of Review
A challenge to the denial of a motion for instructed verdict is actually a
challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,
693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003); Pollock v. State,
405 S.W.3d 396, 401 (Tex. App.—Fort Worth 2013, no pet.). In our due-process
review of the sufficiency of the evidence to support a conviction, we view all of
the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979).
To determine whether the State has met its burden under Jackson to prove
a defendant’s guilt beyond a reasonable doubt, we compare the elements of the
crime as defined by the hypothetically correct jury charge to the evidence
adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014);
see Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The
6
essential elements of the crime are determined by state law.”). 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 restrict the State’s theories
of liability, and adequately describes the particular offense for which the
defendant was tried. Thomas, 444 S.W.3d at 8. The law as authorized by the
indictment means the statutory elements of the charged offense as modified by
the factual details and legal theories contained in the charging instrument.
See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)
(“When the State pleads a specific element of a penal offense that has statutory
alternatives for that element, the sufficiency of the evidence will be measured by
the element that was actually pleaded, and not any alternative statutory
elements.”). A person can be convicted as a party even if the indictment does
not explicitly charge her as a party. Powell v. State, 194 S.W.3d 503, 506 (Tex.
Crim. App. 2006).
The State charged Bleil with having, on or about September 22, 2012
through January 24, 2013,
intentionally or knowingly, during a period of time that is 30 days or
more in duration, commit[ted] two or more acts of sexual abuse, to
wit: aggravated sexual assault of a child by causing the sexual
organ of Thomas Crick to contact the sexual organ of [T.] and/or by
causing the mouth of Thomas Crick to contact the sexual organ of
[T.], and/or by causing the mouth of [T.] to contact the sexual organ
of Thomas Crick, and/or by causing Thomas Crick to penetrate the
sexual organ of [T.] by inserting his finger into her sexual organ,
and/or indecency with a child by causing [T.] to contact the genitals
of Thomas Crick, and/or by causing Thomas Crick to contact the
genitals of [T.], and at the time of the commission of each of these
7
acts of sexual abuse the defendant was 17 years of age or older and
[T.] was younger than 14 years of age.
See Tex. Penal Code Ann. § 21.02(b). The statute defines “act of sexual abuse”
as any act in violation of one or more of several penal laws—as pertinent here—
penal code section 21.11(a)(2), indecency with a child, and penal code section
22.021, aggravated sexual assault of a child. Id. § 21.02(c)(2), (4).
Under the law of parties, the State is able to enlarge a defendant’s criminal
responsibility to include acts in which he or she may not have been the principal
actor. Ryser v. State, 453 S.W.3d 17, 28 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d) (citing Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996)). A
person is criminally responsible as a party to an offense if the offense is
committed by her own conduct, by the conduct of another for which she is
criminally responsible, or by both, and each party to an offense may be charged
with commission of the offense. Tex. Penal Code Ann. § 7.01(a)–(b) (West
2011). A person is criminally responsible for another’s conduct if, acting with the
intent to promote or assist the commission of the offense, she solicits,
encourages, directs, aids, or attempts to aid the other person in committing the
offense or, having a legal duty to prevent commission of the offense and acting
with intent to promote or assist its commission, she fails to make a reasonable
effort to prevent commission of the offense. Id. § 7.02(a)(2), (3) (West 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.
8
State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder.
See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
Instead, we determine whether the necessary inferences are reasonable based
upon the cumulative force of the evidence when viewed in the light most
favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.),
cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. Id. at 448–49.
B. Analysis
Bleil argues that while there is no doubt that Crick committed the offense of
continuous sexual abuse of a child, there is no direct evidence that she,
“although exercising extremely poor judgment, knew that her daughter, T[.], was
being continuously sexually assaulted.” But the standard of review is the same
for direct and circumstantial evidence cases; circumstantial evidence is as
probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170;
Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). Intent may be
inferred from circumstantial evidence such as acts, words, and the appellant’s
conduct. Guevara v. State, 152 S.W.3d 45, 50–52 (Tex. Crim. App. 2004)
(stating that implausible explanations to the police are probative of wrongful
conduct and are also circumstances of guilt).
9
Further, circumstantial evidence may be used to prove party status as long
as there is sufficient evidence of an understanding and common design to
commit the offense. See Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App.
2015); see also Banos v. State, No. 13-14-00307-CR, 2016 WL 757792, at *4
(Tex. App.—Corpus Christi Feb. 25, 2016, no. pet.) (mem. op., not designated for
publication) (holding evidence sufficient when it showed mother’s role in
encouraging and aiding the sexual abuse by knowingly forcing her daughter to go
to her father-abuser, as well as concealing the aftermath with lies and violence,
despite her duty as the child’s mother to take reasonable action to prevent the
abuse); Rainey v. State, No. 03-11-00741-CR, 2013 WL 692477, at *4 (Tex.
App.—Austin Feb. 22, 2013, pet. ref’d) (mem. op., not designated for publication)
(stating that Rainey would be guilty as a party to aggravated sexual assault in the
gang rape context if he encouraged, directed, aided, or attempted to aid an
assailant who, as the principal actor, penetrated K.B.’s mouth with his sexual
organ, while that assailant worked in concert with another who also committed
sexual assault).
Based on the record as set out in our factual recitation above, the jury
could have found that Bleil, a methamphetamine user, deliberately made her
daughter sexually available to Crick, her methamphetamine dealer who
professed, after having first eyed T., that he could “make a 14-year-old girl
scream,” for overnight and weekend stays in his home in exchange for home
delivery of methamphetamine over the course of several months, making her a
10
party to the continuous-sexual-abuse offense. See Padilla v. State, 326 S.W.3d
195, 201 (Tex. Crim. App. 2010) (holding evidence sufficient for murder
conviction when, among other things, a rational trier of fact could have found that
appellant was less than truthful about his involvement when he made his
videotaped statement to the police). The jury’s verdict in this case is rationally
supported by common sense, logical references from the circumstantial
evidence, and sufficient evidence to support Bleil’s conviction. See id. at 201–
02; see also Beltran, 472 S.W.3d at 290 (requiring sufficient evidence of
understanding and common design for party liability); Simon v. State,
743 S.W.2d 318, 321 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (holding
the evidence sufficient to convict appellant-wife as a party to her husband’s
sexual-assault-of-a-child offense based on her affirmative conduct that
constituted a culpable act of aiding in the offense’s commission and to support
the inference of her participation in the offense as a party even though she was
not present on the date of the particular act of intercourse at issue). We overrule
Bleil’s first issue.
IV. Indictment
In her second issue, Bleil contends that the trial court erred by overruling
her motion to quash the indictment. In her fifth issue, Bleil blends a complaint
about charge error with a complaint about the indictment, arguing that the trial
court erred by submitting “indecency with a child” in the charge because she was
not indicted for being a party to indecency with a child and that even though
11
indecency with a child is one of several ways that continuous sexual abuse of a
child can be committed, it did not obviate the necessity to specifically allege the
underlying offenses in the indictment against which she had to defend herself.
The sufficiency of an indictment is a question of law reviewed de novo.
Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009), cert. denied,
559 U.S. 975 (2010). An indictment must be specific enough to inform the
defendant of the nature of the accusations against her so that she may prepare a
defense. Id. However, this due process requirement may be satisfied by means
other than the language in the charging instrument, and when a motion to quash
is overruled, a defendant suffers no harm unless she did not, in fact, receive
notice of the State’s theory against which she would have to defend. Id.; Kellar v.
State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003).
Bleil complains that the indictment was not sufficiently specific to indicate
how she could be guilty as a party to continuous sexual abuse of a child.9 Bleil
states that the indictment alleges only that between September 22, 2012, and
January 24, 2013, Crick committed two or more acts of sexual abuse on T. and
then lists multiple types of sex acts, which she contends is confusing, vague,
indefinite, and thus insufficient to give her notice as to when and what acts were
committed by Crick that could be criminally imputed to her.
9
In her fourth and fifth issues, Bleil characterizes her complaints as jury
charge error but primarily complains about the sufficiency of the indictment to
support the jury charge.
12
As stated above in our sufficiency discussion, a person can be convicted
as a party even if the indictment does not explicitly charge her as a party.
See Powell, 194 S.W.3d at 506. Likewise, generally, an indictment that tracks
the statutory language proscribing certain conduct possesses sufficient specificity
to provide the defendant with notice of the charged offense. See State v.
Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996); Pollock, 405 S.W.3d at
403. When a statute defines the manner or means of committing an offense, an
indictment based upon that statute need not allege anything beyond that
definition. Edmond, 933 S.W.2d at 130. And, with regard to the continuous-
sexual-abuse statute, while the State must provide the defendant with notice of
the time period in which the continuous sexual abuse is alleged to have occurred,
it is not necessary for the State to allege the exact dates on which the predicate
acts of sexual abuse occurred, as those dates are not essential to the State’s
case and are considered to be evidentiary facts only.10 Holton v. State, No. 08-
10
Penal code section 21.02(d) requires jurors to be unanimous as to the
commission of two or more acts of sexual abuse over a thirty-day period, but it
does not require that they agree unanimously on which specific acts of sexual
abuse were committed by the defendant or the exact date on when those acts
were committed. Tex. Penal Code Ann. § 21.02(d); Pollock, 405 S.W.3d at 405;
see Jefferson v. State, 189 S.W.3d 305, 312–13 (Tex. Crim. App.) (stating, in
injury-to-a-child case, that the essential element or focus of that statute is the
result (injury) and not the possible combinations of conduct that cause the result
and that dispensing with unanimity on the means does not violate due process
because the acts or omissions that combine to establish the offense are
“basically morally and conceptually equivalent”), cert denied, 549 U.S. 957
(2006). That is, it is the pattern of behavior or the series of acts that is the
element upon which the jurors must be unanimous in order to convict. Pollock,
405 S.W.3d at 405.
13
13-00220-CR, 2015 WL 4878608, at *6 (Tex. App.—El Paso Aug. 14, 2015, no
pet.). Here, as set out above, the indictment tracked the language of the
applicable criminal statute for continuous sexual abuse of a child and alleged a
variety of acts of sexual abuse during the September-to-January time period
while the victim was younger than age fourteen.
Further, as pointed out by the State, Bleil also received ample notice of the
State’s theory of criminal liability. The State filed notices of T.’s outcry
statements pursuant to code of criminal procedure article 38.072 on January 15,
2015. The outcry statements contained T.’s version of events as recited by her in
her forensic interview and as she told one of her aunts, all of which paralleled her
detailed trial testimony. And Bleil herself acknowledged the State’s theory of
criminal liability in her motion to quash, which she filed a few weeks later:
The State’s theory in the case is that the defendant Bleil provided
her daughter [T.] to a codefendant, Thomas Crick, and that
defendant Crick engaged in sexual activities with [T.]. At the time of
these sexual activities, [T.] was under the age of 14 years. The
State’s theory is that defendant Bleil provided her daughter to
defendant Crick with the intent and understanding that defendant
Crick would engage in sexual activities with [T.] and that in
exchange, defendant Bleil would receive from defendant Crick illegal
drugs including methamphetamine. Thus the State’s theory is that
defendant Bleil was a party[] to underlying offenses of trafficking.[11]
aggravated sexual assault and indecency with a child.
11
The State later moved to strike the trafficking portion of the indictment,
and Bleil agreed.
14
At a pretrial hearing on April 6, 2015, the trial court asked Bleil if she understood
the allegations and what she was charged with by the indictment, and Bleil
replied, “Yes, sir.”
While Bleil contends that the State should have specified the dates when
Crick’s various acts of sexual abuse of her daughter occurred, she does not
explain how her perceived deficiencies in the indictment impaired her ability to
prepare a defense. To the contrary, the acknowledgement in her motion to
quash that the State planned to prosecute her based on a theory that she paid
for drugs continuously over a four-month period by bartering sexual use of her
daughter’s body to Crick evidences ample understanding of the nature of the
accusations levied against her, thus demonstrating that Bleil received notice
sufficient to comply with our federal and state due process requirements.
See Smith, 297 S.W.3d at 267. We overrule Bleil’s second issue.
We likewise overrule Bleil’s fifth issue. Bleil complained at the charge
conference that the indictment did not include “the sexual desire element” in its
indecency allegations,12 and she asked that the two indecency-with-a-child
12
A person commits indecency with a child if, with a child younger than
seventeen years of age, (1) he or she engages in sexual contact with the child or
causes the child to engage in sexual contact; or (2) with intent to arouse or gratify
the sexual desire of any person, he or she: (A) exposes the person’s anus or any
part of the person’s genitals, knowing the child is present; or (B) causes the child
to expose the child’s anus or any part of the child’s genitals. Tex. Penal Code
Ann. § 21.11(a) (West 2011). The indictment and charge did not include
subsection (2). Section 21.11(c) states that “sexual contact” means the following
acts, if committed with the intent to arouse or gratify the sexual desire of any
person: (1) any touching by a person, including touching through clothing of the
15
theories set out in the charge be stricken. Bleil stated during the charge
conference that she objected to the submission of the indecency theories “simply
because the indictment does not make that allegation.”
The indictment charged Bleil with having “intentionally or knowingly, during
a period of time that is 30 days or more in duration, commit[ted] two or more acts
of sexual abuse, to wit: . . . indecency with a child.” As pointed out by the State
and acknowledged by defense counsel during the charge conference, Bleil did
not raise this complaint about the indictment before trial on the merits began.
See Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005) (stating that if a
defendant does not object to a defect, error, or irregularity of form or substance in
an indictment before the date on which trial on the merits commences, he waives
or forfeits the right to object to the defect, error, or irregularity and may not raise
the objection on appeal or in any other postconviction proceeding); see Jacobsen
v. State, 325 S.W.3d 733, 740 (Tex. App.—Austin 2010, no pet.) (“Appellant’s
pretrial motion to quash did not complain of the indictment’s failure to allege a
culpable mental state, and this issue was not raised at the hearing on the motion.
If the indictment was defective for this reason, appellant forfeited his right to
complain by failing to timely object.”).
anus, breast, or any part of the genitals of a child; or (2) any touching of any part
of the body of a child, including touching through clothing, with the anus, breast,
or any part of the genitals of a person. Id. § 21.11(c).
16
Further, indecency with a child was one of many potential “act[s] of sexual
abuse” listed in the continuous-sexual-abuse-of-a-child statute with which Bleil
was charged, see Tex. Penal Code Ann. § 21.02(c)(2),13 and both the indictment
and charge listed which acts of indecency would support such a conviction. The
indictment listed, among others, the following as acts that qualified to support
“acts of sexual abuse” for the continuous-sexual-abuse-of-a-child offense:
“indecency with a child by causing [T.] to contact the genitals of Thomas Crick,
and/or by causing Thomas Crick to contact the genitals of [T.]” [Emphasis
added.] These two allegations followed an introduction that made clear that
these were acts of sexual abuse and followed the aggravated-sexual-assault-of-
a-child allegations.
Even if Bleil had preserved her objection to the indictment on this issue, in
light of our discussion above, the acts were sufficiently charged in the indictment
under the circumstances here to provide her with adequate notice for preparing
her defense, and the indecency paragraphs included in the jury charge were
necessary as part of the manner and means of committing continuous sexual
abuse of a child.14 See Casey v. State, 349 S.W.3d 825, 829 (Tex. App.—El
For purposes of the continuous-sexual-abuse-of-a-child statute, “act of
13
sexual abuse” means any act that is in violation of one or more of eight penal
laws. Tex. Penal Code Ann. § 21.02(c). Indecency with a child under section
21.11(a)(1) qualifies as an act of sexual abuse under section 21.02(c) “if the
actor committed the offense in a manner other than by touching, including
touching through clothing, the breast of a child.” Id. § 21.02(c)(2).
14
The abstract portion of the charge stated,
17
Paso 2011, pet. ref’d) (explaining that the alternate manners and means in
section 21.02 all involve actual or intended sexual abuse of a child, all are
felonies, all are morally equivalent, and all are conceptually similar); see also
Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011) (“Trial courts are
obliged to instruct juries on ‘the law applicable to the case,’ which includes the
statutory definitions that affect the meaning of the elements of the offense.”). We
overrule Bleil’s fifth issue.
Our law provides that a person commits the offense of indecency
with a child if, with a child younger than 17 years of age, whether the
child is of the same or opposite sex, the person engages in sexual
contact with the child or causes the child to engage in sexual
contact.
See Tex. Penal Code Ann. § 21.11(a)(1). The charge then defined “sexual
contact” with the pertinent parts of the indecency-with-a-child statute regarding
genital contact, stating,
“Sexual contact” means any touching by a person, including
touching through clothing, of any parts of the genitals of a child or
touching any part of the body of a child, including touching through
clothing, with any part of the genitals of a person, with the intent to
arouse or gratify the sexual desire of any person.
Id. § 21.11(c). The application portions of the charge paralleled the abstract,
stating:
. . . and/or indecency with a child by causing [T.] to contact the
genitals of Thomas Crick with the intent to arouse or gratify the
sexual desire of Thomas Crick, and/or by causing Thomas Crick to
contact the genitals of [T.] with the intent to arouse or gratify the
sexual desire of Thomas Crick . . . .
18
V. Suppression
In her third issue, Bleil argues that the trial court erred by overruling her
motion to suppress her oral statement in State’s Exhibit 215 because she never
waived her Miranda16 and article 38.22 rights. 17
She also claims that the trial
court’s admitting her oral statement violated her rights in that her confession was
involuntary because of improper promises and inducements made to her by law
enforcement. See, e.g., Miller v. State, 196 S.W.3d 256, 266 (Tex. App.—Fort
Worth 2006, pet. ref’d) (stating that a confession may be deemed “involuntary”
under three different theories: failure to comply with article 38.22, failure to
comply with Miranda’s dictates, or failure to comply with due process or due
course of law because the confession was not freely given as a result of
coercion, improper influences, or incompetency).
15
At the suppression hearing, the trial court stated that the first interview,
which was videotaped, was noncustodial, while the second interview, which was
an audio recording, was custodial and that the suppression motion pertained only
to the audio recording.
16
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
17
Article 38.22 presents the state equivalent of the custodial-interrogation
warnings required by Miranda regarding the rights to remain silent, to have a
lawyer—or appointed lawyer—present for advice before and during questioning,
and to knowingly, intelligently, and voluntarily waive the rights before and during
the statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (West Supp.
2015) (incorporating warnings required in section 2(a)); Herrera v. State,
241 S.W.3d 520, 526 (Tex. Crim. App. 2007). The warnings in article 38.22,
section 2(a) “are virtually identical to the Miranda warnings, with one exception—
the warning that an accused ‘has the right to terminate the interview at any time’
as set out in Section 2(a)(5) is not required by Miranda.” Herrera, 241 S.W.3d at
526 (footnotes omitted).
19
The State responds that Bleil received her article 38.22 warnings in writing
and orally, which she waived prior to questioning, and that Bleil’s written notation
on the “Voluntary Statement” paperwork to the effect that she did not want to
make a statement was made near the end of her oral statement and referred
exclusively to her unwillingness to provide a separate written statement. The
burden of proof at a hearing on admissibility is on the prosecution, which must
prove by a preponderance of the evidence that the defendant’s statement was
given voluntarily. Miller, 196 S.W.3d at 266.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
20
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When, as here, the trial court makes explicit fact
findings, we determine whether the evidence, when viewed in the light most
favorable to the trial court’s ruling, supports those fact findings. Kelly,
204 S.W.3d at 818–19. We then review the trial court’s legal ruling de novo
unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling. Id. at 818. We must uphold the trial court’s ruling if
it is supported by the record and correct under any theory of law applicable to the
case even if the trial court gave the wrong reason for its ruling. State v. Stevens,
235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d
401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
With regard to the first portion of Bleil’s argument—that she never waived
her Miranda and article 38.22 rights—the trial court read the following fact
findings into the record:
21
that prior to the interview, which was recorded and is preserved for
the record of this trial as State’s Exhibit 2-A, that [Bleil] was read her
38.22 statutory rights, they were explained to her in plain English;
that at the conclusion of the reading of those rights she was asked if
she understands to please initial next to each right, and the initials
“LB” appear on the face of what is in evidence for the record of this
hearing as State’s No. 2-B, which is consistent with the audio
portion, even though there’s not a video observing the initials, but
the “LB” initials seem to be consistent with the “Leticia L. Bleil”
signature at the bottom of the page, which was referred to later in a
part of the interview which will not be published to the jury after the “I
do not wish to make a statement at this moment” discussion that
took place previously; that on the face of the audio the detective told
her, “If you understand your rights and wish to make a statement as
indicated and summarized the language below the 38.22 warnings,
just sign here that you’re willing to do so,” words to that effect. She
did sign and date below not only the acknowledgment of the rights
that are initialed but the willingness to talk.
We have reviewed the audio-recording and the written warnings marked
with “LB” and Bleil’s signature. We find that these support the trial court’s fact
findings that Bleil received her warnings in compliance with article 38.22.
See Leza v. State, 351 S.W.3d 344, 353 (Tex. Crim. App. 2011) (“[W]e have
consistently held that waiver of Article 38.22 rights ‘may be inferred from actions
and words of the person interrogated.’”). The article 38.22 warnings at issue also
sufficed to comply with Miranda. See Herrera, 241 S.W.3d at 526. Therefore,
we overrule this portion of Bleil’s third issue.
With regard to the remainder of Bleil’s third issue, regarding whether her
confession was involuntary because of improper promises and inducements
made to her by law enforcement, Bleil does not direct us to any false promises or
22
inducements made during the interview or at any other time. The trial court read
the following findings and conclusions into the record:
I will acknowledge . . . for the record, that there was
discussion about bond at her direction, not the detective’s, and
asked repeatedly, if she talked, “does it mean I’m going to get out”
and she was repeatedly told no. And later, after pushing the issue,
advised “if you can’t get out in the jail,” words to the effect, “to get a
lawyer, you can ask for a bond reduction at the County,” that the
detective tried to sidestep, like “I have no control over your bond
issue. That was set by the judge.”
And then after that conversation and interview began -- and I
did not listen to the 50-some-odd minutes prior to the discussion of a
potential written statement, but I did listen for five or six minutes into
it to listen to the nature and the tone of the conversation on behalf of
the detective and the Defendant,[18] and it appeared on its face to be
a typical conversation with no evidence of coercion and was
consistent with the acknowledgment and waiver of rights that took
place.
And, therefore, as a matter of fact and as a matter of law, I
believe the Defendant was warned of her statutory rights and for
constitutional and statutory purposes waived those rights and
voluntarily agreed to an interview. And based upon that, Defense
motion to suppress the entire statement will be denied for those
reasons and such others as are proper in law and fact.
The statement of an accused may be used in evidence against him
provided it was “freely and voluntarily made without compulsion or persuasion.”
Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). “[F]or a promise to render a
confession invalid under Article 38.21, the promise must be positive, made or
We note that listening for “five or six minutes” is not consistent with the
18
standard that voluntariness be decided by considering the totality of the
circumstances under which the statement is obtained. See Creager v. State,
952 S.W.2d 852, 855 (Tex. Crim. App. 1997).
23
sanctioned by someone in authority, and of such an influential nature that it
would cause a defendant to speak untruthfully.” Martinez v. State, 127 S.W.3d
792, 794 (Tex. Crim. App. 2004). Further, in determining whether a suspect
“knowingly, intelligently, and voluntarily” waived her rights set out in article 38.22,
the behavior of the police may or may not be a factor—the voluntariness of a
confession may be called into question if the defendant is under the duress of
hallucinations, illness, medications, private threat, or mental retardation or as a
result of youth or other disabilities. See Oursbourn v. State, 259 S.W.3d 159,
171–72 (Tex. Crim. App. 2008) (explaining fact scenarios that can raise a state-
law claim for involuntariness that would not raise a federal constitutional claim).
We have listened to the entire audio recording and conclude, based on the
totality of the circumstances, that the recording supports the trial court’s findings
and conclusions that Bleil’s statement was voluntary. See Creager, 952 S.W.2d
at 855. We overrule the remainder of Bleil’s third issue.
VI. Jury Charge
During trial, Bleil objected to the inclusion of a family code provision and to
the unanimity instruction, both of which the trial court overruled, and she
requested a special instruction on the law of parties and a lesser-included
offense instruction, both of which the trial court denied. In her remaining issues,
Bleil challenges these decisions by the trial court.
24
A. Standard of Review
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. A properly preserved error will require reversal as long as the error
is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)
(op. on reh’g).
B. Charge
In addition to defining various terms, the charge set out as follows:
You are further instructed that in order to find the Defendant
guilty of the offense of continuous sexual abuse of a young child,
you are not required to agree unanimously on which specific acts of
sexual abuse, if any, were committed by the Defendant or the exact
date when those acts were committed, if any. However, in order to
find the Defendant guilty of the offense of continuous sexual abuse
of a young child, you must unanimously agree that the Defendant,
during a period that is 30 or more days in duration, on or about the
22nd day of September, 2012 through the 24th day of January,
2013, as charged in the indictment, committed two or more acts of
sexual abuse. [Emphasis added.]
....
A person is criminally responsible as a party to an offense if
the offense is committed by her own conduct, by the conduct of
another for which she is criminally responsible, or by both.
Each party to an offense may be charged with commission of
the offense.
25
A person is criminally responsible for an offense committed by
the conduct of another if:
1) acting with intent to promote or assist the commission of
the offense, she encourages, aids, or attempts to aid the other
person to commit the offense; OR
2) having a legal duty to prevent commission of an offense
and acting with intent to promote or assist its commission, she fails
to make a reasonable effort to prevent commission of the offense.
Mere presence alone will not constitute one a party to an
offense.
Our law provides that the parent of a child has the legal duty
of care, control, protection, and reasonable discipline of the child.
Now, if you find from the evidence beyond a reasonable doubt
that Thomas Crick . . . on or about the 22nd day of September 2012
through the 24th day of January 2013, did then and there
intentionally or knowingly, during a period of time that is 30 or days
more [sic] in duration, commit two or more acts of sexual abuse, to
wit: aggravated sexual assault of a child by causing the sexual
organ of Thomas Crick to contact the sexual organ of [T.], and/or by
causing the mouth of Thomas Crick to contact the sexual organ of
[T.], and/or by causing the mouth of [T.] to contact the sexual organ
of Thomas Crick, and/or by causing Thomas Crick to penetrate the
sexual organ of [T.] by inserting his finger into her sexual organ,
and/or indecency with a child by causing [T.] to contact the genitals
of Thomas Crick with the intent to arouse or gratify the sexual desire
of Thomas Crick, and/or by causing Thomas Crick to contact the
genitals of [T.] with the intent to arouse or gratify the sexual desire of
Thomas Crick, and at the time of the commission of each of these
acts of sexual abuse the Defendant was 17 years of age or older
and [T.] was younger than 14 years of age, AND that the Defendant,
Leticia Bleil, acting with intent to promote or assist the commission of
the offense, did encourage, aid, or attempt to aid the said Thomas
Crick to commit said offense; OR
If you find from the evidence beyond a reasonable doubt that
Thomas Crick . . . on or about the 22nd day of September 2012
through the 24th day of January 2013, did then and there
intentionally or knowingly, during a period of time that is 30 days or
26
more in duration, commit two or more acts of sexual abuse, to wit:
aggravated sexual assault of a child by causing the sexual organ of
Thomas Crick to contact the sexual organ of [T.], and/or by causing
the mouth of Thomas Crick to contact the sexual organ of [T.],
and/or by causing the mouth of [T.] to contact the sexual organ of
Thomas Crick, and/or by causing Thomas Crick to penetrate the
sexual organ of [T.] by inserting his finger into her sexual organ,
and/or indecency with a child by causing [T.] to contact the genitals
of Thomas Crick with the intent to arouse or gratify the sexual desire
of Thomas Crick, and/or by causing Thomas Crick to contact the
genitals of [T.] with the intent to arouse or gratify the sexual desire of
Thomas Crick, and at the time of the commission of each of these
acts of sexual abuse the Defendant was 17 years of age or older
and [T.] was younger than 14 years of age, AND that the Defendant,
Leticia Bleil, having a legal duty to prevent commission of the
offense and acting with intent to promote or assist its commission,
she failed to make a reasonable effort to prevent commission of the
offense then you will find the Defendant guilty of the offense of
continuous sexual abuse of a young child, as charged in the
indictment.
....
Your verdict must be by unanimous vote of all members of the
jury. . . .
[Emphasis added.] The verdict form, signed by the presiding juror, provided for
the jury to find Bleil not guilty or to find her guilty of the offense of continuous
sexual abuse of a young child.
C. Unanimity and the Family Code Provision in the Charge
In her sixth issue, Bleil contends that the trial court erred by submitting a
charge that did not require unanimity among the jurors for a specific finding of
guilty. Bleil argues that the submitted charge exceeded due process because it
alleged that she was alternatively guilty (1) as a party for sending T. to Crick’s
home to have sex with him and (2) as directly culpable for violating her duty as a
27
parent to protect and prevent such abuse. In her fourth issue, Bleil contends that
the trial court erred by overruling her objection to the charge instruction on the
family code theory.19
Jury unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d
738, 745 (Tex. Crim. App. 2005). In other words, every juror must agree that “the
defendant committed the same, single, specific criminal act.” Id.; Bundy v. State,
280 S.W.3d 425, 431 (Tex. App.—Fort Worth 2009, pet. ref’d). The charge
here—instead of setting out two distinct criminal acts—provided the jury with
alternate theories of the same offense. In one, Bleil assisted Crick by
encouraging him to commit the sexual abuse of her daughter in exchange for
drugs; in the other, she betrayed a parent’s legal duty to her daughter by
assisting Crick to commit the sexual abuse of her daughter in exchange for
drugs. In both cases, Bleil met the elements of acting as a party to the
continuous sexual abuse of her daughter—the result of her actions. That is, Bleil
did not directly sexually assault the child herself but provided the encouragement
and means by which Crick was able to do so in exchange for providing her with
her drug of choice. Because the charge in this case merely gave the jury
alternate means of committing the same offense—continuous sexual abuse of a
19
The trial court submitted the instruction under family code section
151.001(a)(2), invoking penal code section 7.02(a)(3). Family code section
151.001(a)(2) states that a parent of a child has the following rights and duties:
“the duty of care, control, protection, and reasonable discipline of the child.” Tex.
Fam. Code Ann. § 151.001(a)(2) (West 2014).
28
child as a party—we conclude that the charge did not violate the unanimity
requirement, and we overrule Bleil’s sixth issue.20 See Pollock, 405 S.W.3d at
405.
Further, when, as here, a jury returns a general guilty verdict on an
indictment charging alternate methods of committing the same offense, the
verdict will stand if the evidence is sufficient to support a finding of guilt based on
at least one of the valid theories, even if the other theory was erroneously
submitted to the jury. Sanchez v. State, 376 S.W.3d 767, 775–76 (Tex. Crim.
App. 2012) (op. on reh’g). Because, as set out above in our factual recitation
and our sufficiency analysis, the evidence is sufficient to support Bleil’s
conviction on the State’s non-family-law-related theory, we overrule Bleil’s fourth
issue without needing to reach the merits of her argument. See Tex. R. App. P.
47.1.
D. Law of Parties
Bleil requested the following instruction: “You are instructed a person is
not guilty as a party even though he aids a principal actor where he is without
knowledge of the principal’s criminal intent and his conduct is not inherently
criminal in nature.” The trial court denied her request, stating that it was a
20
To the extent Bleil also argues that the jury did not have to be unanimous
as to the sexual offenses committed by Crick, “Texas intermediate courts have
routinely held that the individual acts of sexual abuse are manner and means, not
an element of the offense, and section 21.02 does not violate the jury unanimity
requirement.” Fulmer v. State, 401 S.W.3d 305, 312 (Tex. App.—San Antonio
2013, pet. ref’d), cert. denied, 134 S. Ct. 436 (2013).
29
potential comment on the weight of the evidence21 and was not a legally required
instruction.22 In her seventh issue, Bleil argues that the trial court erred by failing
to give her proposed instruction.
Bleil claims that although she may have sent T. to Crick’s house, she did
not know she was committing a crime by doing so, and she relies on Amaya v.
State, 733 S.W.2d 168, 174 (Tex. Crim. App. 1986), to support her argument.
But, as pointed out by the State, Amaya involved a challenge to the sufficiency of
the evidence, not to the jury charge,23 and we have already held that the
evidence is sufficient to support Bleil’s conviction.
21
Cf. Bartlett v. State, 270 S.W.3d 147, 151–52 (Tex. Crim. App. 2008)
(setting out three specific circumstances under which the trial court may single
out a particular item of evidence in the charge without making an impermissible
comment).
22
In contrast, when a rule or statute requires an instruction under the
particular circumstances of the case, that instruction is “the law applicable to the
case.” See Oursbourn, 259 S.W.3d at 180. Other than her citation to Amaya,
Bleil directs us to no rule or statute that required the instruction that she
requested.
23
Amaya and four others were tried jointly and convicted of misapplication
of fiduciary property. 733 S.W.2d at 169. The evidence showed Amaya was
aware of the source of the money at issue and his active participation in its
disposition, and the court of criminal appeals stated that if he could be treated as
a primary actor in the offense, then his conviction would be affirmed. Id. at 173.
However, the evidence did not show that Amaya acted in a fiduciary capacity
when he took part in the transactions at issue, leaving him subject to criminal
liability only under the law of parties. Id. at 173–74. And the court held that the
evidence was not sufficient to support holding him accountable as a party when
there was no indication that he knew that his conduct assisted in the commission
of an offense. Id. at 174. That is, Amaya’s defense centered not on ignorance of
the conduct (dispersal of funds to fiduciaries) but on ignorance that the conduct
constituted an offense at all because the conduct—dispersing money—was not
30
In addition to the portions of the charge set out above, the trial court
defined intent24 and knowledge.25 Granting Bleil’s requested instruction would
therefore have been redundant, in addition to confusing to the jury. Cf. Bartlett,
270 S.W.3d at 151 (stating that the trial court may single out a particular item of
evidence in the jury instruction when the law directs it to attach a certain degree
of weight, e.g., a limiting instruction; when the legislature has expressly required
the trial court to call particular attention to specific evidence, e.g., a predicate fact
as set out in a statutory presumption; or when the trial court may instruct the jury
with respect to evidence that is admissible contingent upon certain predicate
facts that the jury has to decide, e.g., an instruction under article 38.23). A
judicial instruction that singles out a particular piece of evidence without meeting
one of the three legally authorized purposes set out in Bartlett risks impinging
upon the jury’s independence in its role as trier of the facts. Id. at 151–52. We
inherently criminal, unlike, for example, engaging in sexual activity with a child.
Id. at 174–75.
24
As set out in the charge and in the penal code, a person acts
intentionally, or with intent, with respect to the nature of her conduct or to a result
of her conduct when it is her conscious objective or desire to engage in the
conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2011).
25
As set out in the charge and in the penal code, a person acts knowingly,
or with knowledge, with respect to the nature of her conduct or to circumstances
surrounding her conduct when she is aware of the nature of her conduct or that
the circumstances exist. A person acts knowingly, or with knowledge, with
respect to a result of her conduct when she is aware that her conduct is
reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(b) (West
2011).
31
conclude that the trial court did not err by denying Bleil’s requested instruction,
and we overrule her seventh issue.
E. Lesser-Included Offense Instruction
In her eighth issue, Bleil argues that the trial court erred by not submitting
a lesser-included offense instruction. Bleil states that any one act of sexual
abuse would be a lesser-included offense of continuing sexual abuse of a child,
as either indecency or sexual assault of a child and that if thereby properly
instructed, the jury could have concluded that she only knew the first time but not
necessarily on the subsequent occasions.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure.26 Tex. Code Crim. Proc.
26
Under article 37.09, an offense is a lesser-included offense if:
(1) It is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
32
Ann. art. 37.09; Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). The
State concedes that aggravated sexual assault of a child and indecency with a
child are lesser-included offenses of continuous sexual abuse. See Soliz v.
State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) (“To the extent that a
continuous-sexual-abuse indictment alleges certain specific offenses, an ‘offense
listed under Subsection (c)’ [of the continuous-sexual-abuse statute] will always
meet the first step of the Hall analysis.”).
Second, some evidence must exist in the record that would permit a jury to
rationally find that if the appellant is guilty, she is guilty only of the lesser offense.
Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be evaluated in
the context of the entire record. Moore, 969 S.W.2d at 8. There must be some
evidence from which a rational jury could acquit the appellant of the greater
offense while convicting her of the lesser-included offense. Id. The court may
not consider whether the evidence is credible, controverted, or in conflict with
other evidence. Id. Anything more than a scintilla of evidence may be sufficient
to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
Relying on her first issue, Bleil argues that “[t]he jury may . . . not have had
sufficient evidence . . . to know when certain acts of sexual abuse occurred” and
should have been allowed to conclude that only one act of sexual abuse—
Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006).
33
indecency or aggravated sexual assault of a child—had occurred “without
concluding that there were two or more incidents of sexual abuse to which [Bleil]
could have been imputed to have known criminally as a party had occurred. In
other words, they could conclude she knew the first time but not necessarily on
subsequent occasions.” The State replies that there is no evidence in the record
that would have allowed a rational jury to conclude that Bleil was guilty only of
the lesser offenses.
Bleil’s theory at trial was that she had had no idea what was going on, and
her theory on appeal in her sufficiency challenge was that although she
“exercise[d] extremely poor judgment,” there was no evidence that she knew T.
was being continuously sexually assaulted or any direct proof that Bleil knew T.
was having sex with Crick. With regard to the requested lesser-included-offense
instruction, Bleil’s counsel candidly admitted during the charge conference, “I
don’t know that there’s a specific event in a case that narrows and talks about
somebody knowing of only one instance because there’s no evidence about
anybody knowing of anything, other than circumstantially.”
And Bleil’s argument on appeal that the jury could have concluded that
Bleil “knew the first time but not necessarily on subsequent occasions,” defies
both logic and law. If the jury found that Bleil knew that Crick had sexually
assaulted T. when she sent her on the first overnight stay, no rational jury could
have concluded that when Bleil repeated the process she did so without
knowledge that a similar outcome was reasonably certain to occur. See Tex.
34
Penal Code Ann. 6.03(b) (“A person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably
certain to cause the result.”).
The trial court denied the request based on the lack of any evidence to
show that if Bleil was guilty, she was guilty of only one count of aggravated
sexual assault or indecency with a child. Based on the record before us, we
agree with the trial court’s determination, and we overrule Bleil’s final issue.
See Brown v. State, 381 S.W.3d 565, 583 (Tex. App.—Eastland 2012, no pet.)
(reaching same conclusion when record reflected numerous instances of sexual
abuse over the course of several years).
VII. Conclusion
Having overruled all of Bleil’s issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
PUBLISH
DELIVERED: June 9, 2016
35