Leticia BLEIL, Appellant v. The STATE of Texas, State
NO. 02-15-00120-CR
Court of Appeals of Texas, Fort Worth.
DELIVERED: June 9, 2016
Rehearing Overruled June 30, 2016.
496 S.W.3d 194
BONNIE SUDDERTH, JUSTICE
V. CONCLUSION
Having overruled both of Pantoja‘s issues, we affirm the trial court‘s judgment.
Sharen Wilson, Criminal District Attorney; Debra Windsor, Chief of Post Convictions; Mark Kratovil, J. Eric Nickols, Melinda Westmoreland, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, TX, for State.
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
OPINION
BONNIE SUDDERTH, JUSTICE
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
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.
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,
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
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 aunt 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, 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
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, 124 S.Ct. 806, 157 L.Ed.2d 701 (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
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 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).8
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 acts of sexual abuse the defendant was 17 years of age or older and [T.] was younger than 14 years of age.
See
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.
The trier of fact is the sole judge of the weight and credibility of the evidence. See
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
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 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 indecen-
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, 130 S.Ct. 1689, 176 L.Ed.2d 186 (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.
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. 08-13-00220-CR, 487 S.W.3d 600, 609-10, 2015 WL 4878608, at
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.
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 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
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
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 Ca-
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).
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. 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, 124 S.Ct. 1883, 158 L.Ed.2d 469 (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:
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
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 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.”
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.
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.
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 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
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 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
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 potential comment on the weight of the evidence21 and
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.
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
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, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). First, the lesser offense must come within
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—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
The trial court denied the request based on the lack of any evidence to show that if Bleil was guilty, she was guilty only of 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.
BONNIE SUDDERTH
JUSTICE
Ismael MARTINEZ, Appellant v. The STATE of Texas, Appellee
NO. 14-14-00886-CR
Court of Appeals of Texas, Houston (14th Dist.).
Opinion filed June 9, 2016