COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-14-00139-CR
02-14-00140-CR
SAMUEL HENRY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NOS. F-2013-1050-C, F-2013-1051-C
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MEMORANDUM OPINION 1
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Appellant Samuel Henry appeals from his convictions for aggravated
sexual assault of a child and indecency with a child. In two issues, Henry argues
that the evidence was insufficient to support his convictions and that extraneous-
act evidence was improperly admitted at the guilt-innocence phase of trial.
Because the evidence was sufficient and because the extraneous-act evidence
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See Tex. R. App. P. 47.4.
was properly admitted into evidence, we overrule Henry’s issues and affirm the
trial court’s judgments.
I. BACKGROUND
In October 2010, Pam and Gina went on a week-long cruise, leaving
Pam’s daughter Cathy, who was six years old, in the care of Gina’s brother who
lived with Gina. 2 Henry was Gina’s friend and was a frequent visitor to her home.
In fact, he visited so often that many believed Henry lived with Gina. While Pam
and Gina were gone on the cruise, Cathy was watching television on a bed with
Henry when she turned and saw that Henry had pulled down his pants to the
bottom of his thighs and was touching his penis. Cathy left the room. In
February 2012, Cathy told her stepmother about the incident who, in turn, told
Pam. Pam did not report Henry to the police because she did not “want to
automatically accuse [Henry],” whom she trusted.
Gina’s niece, Renee, spent a lot of time at Gina’s home and considered
Henry to be her uncle. Renee would spend the night at Gina’s home and would
sleep on a mattress in the living room. On September 29, 2012 when Renee
was between twelve and thirteen years old, she stayed at Gina’s home. She
woke up to find Henry on top of her. Her underwear had been removed and
Henry was having sex with her, with his penis inside her vagina. Henry kept
“looking behind him, looking if anybody was coming.” Renee pretended to be
2
To protect the identities of the child complainants in this case, we use
pseudonyms to identify the complainants and their relatives.
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asleep during the entire incident. The next morning, Renee told Gina’s son, who
was the same age as Renee, that Henry had “raped” her but he did not believe
her. Renee told no one else until February 2013, when she told a counselor at
her school. The counselor reported Renee’s outcry to the authorities.
Once Henry’s sexual assault of Renee came to light, police investigators
discovered Henry’s prior exposure to Cathy. In March 2013, Pam gave a
statement about Henry’s actions with her daughter Cathy. In May 2013, a grand
jury indicted Henry with (1) the aggravated sexual assault of Renee by causing
Renee’s sexual organ to contact Henry’s sexual organ and (2) indecency with
Cathy by exposing his genitals. See Tex. Penal Code Ann. § 21.11 (West 2011),
§ 22.021 (West Supp. 2014). Both indictments contained an enhancement
paragraph alleging that Henry previously had been convicted of delivery of more
than one but less than four grams of cocaine in a drug-free zone. See Tex.
Health & Safety Code Ann. § 481.112 (West 2010), § 481.134 (West Supp.
2014); Tex. Penal Code Ann. § 12.42 (West Supp. 2014).
At the guilt-innocence phase of trial, evidence was admitted that in 2003
when Henry was twenty-four, he began a consensual sexual relationship with
Rachel, a fourteen-your-old girl. When Rachel was fifteen, she gave birth to
Henry’s daughter. Wendy also testified that around 2001 to 2004 when she was
approximately eleven to thirteen years old, she frequently would spend the night
at the home of her cousin, Gina. Henry, who also was a frequent visitor at Gina’s
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home, inappropriately rubbed on Wendy’s thighs and chest on two occasions
while she pretended to sleep. On the second occasion, Wendy left the room.
The jury found Henry guilty of aggravated sexual assault and indecency
with a child and assessed his sentence at sixty years’ and twelve years’
confinement, respectively. The trial court ordered the sentences to be served
consecutively. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2014).
Henry appeals and argues that the evidence is legally insufficient to support his
convictions and that the trial court erred by allowing Rachel and Wendy to testify.
II. SUFFICIENCY OF THE EVIDENCE
In his second issue, Henry argues that the evidence was legally insufficient
to support his convictions. Other than a recitation of the applicable standard of
review, the entirety of Henry’s appellate argument is that “in this case, the
evidence is legally insufficient to support the verdict.”
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); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). Regarding aggravated sexual assault, Renee testified to
each element of the offense. She stated that when she was twelve or thirteen
years old, she woke up with Henry on top of her, her panties having been taken
off, with Henry putting his penis inside her vagina. Regarding indecency, Cathy
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testified that when she was six years old, Henry pulled his pants down such that
Cathy could see his genitals. Henry does not specify how this evidence is
insufficient to support his convictions and, indeed, recognizes that it was within
the jury’s province to determine the credibility of Renee and Cathy. See Thomas
v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). We conclude the evidence
was sufficient to support both convictions. See Tex. Code Crim. Proc. Ann. art.
38.07 (West Supp. 2014); Revels v. State, 334 S.W.3d 46, 53 (Tex. App.—Dallas
2008, no pet.); Navarro v. State, 241 S.W.3d 77, 80–81 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d). We overrule issue two.
III. EXTRANEOUS-ACT EVIDENCE
In his first issue, Henry argues that the trial court erred by admitting
Rachel’s and Wendy’s testimony regarding extraneous acts, which affected his
substantial rights. See Tex. R. App. P. 44.2(b); Tex. R. Evid. 403. Specifically,
Henry asserts that “[t]he use of the testimony regarding extraneous acts tipped
the scales for the [S]tate and the evidence was no longer the testimony of the
two complainants in the instant case.”
At trial, Henry objected to Rachel’s and Wendy’s extraneous-act testimony
and argued that although relevant, it was unfairly prejudicial. The trial court
overruled the objections, and we assume the trial court conducted the
appropriate balancing test under Rule 403. See Parmer v. State, 38 S.W.3d 661,
670 (Tex. App.—Austin 2000, pet. ref’d). Under the Rule 403 balancing test, the
court necessarily determined that the probative value of the extraneous acts
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substantially outweighed their prejudicial effect by considering (1) how
compellingly the evidence served to make a fact of consequence more or less
probable, (2) the potential the extraneous acts had to impress the jury in an
irrational and indelible way, (3) the time the State spent in developing the
evidence, and (4) the force of the State’s need for the evidence to prove a fact of
consequence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
Henry’s actions with Rachel and Wendy were strikingly similar to the
charged offenses and served as additional evidence of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident;
thus, tending to make a fact of consequence more probable. The State did not
spend an inordinate amount of time developing Rachel’s and Wendy’s
testimonies. Although the extraneous-act evidence could have impressed the
jury in an indelible way, the State had a need to develop this evidence because
there were no eyewitnesses and no physical evidence to corroborate Cathy’s and
Renee’s outcries against Henry. We conclude the trial court did not err by
admitting the testimonies of Rachel and Wendy. See Blackwell v. State, 193
S.W.3d 1, 15 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Jones v. State,
119 S.W.3d 412, 423 (Tex. App.—Fort Worth 2003, no pet.). We overrule issue
one.
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IV. CONCLUSION
Having overruled Henry’s two issues, we affirm the trial court’s judgments.
See Tex. R. App. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 29, 2015
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