COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00482-CR
KURLEY JAMES JOHNSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 53,445-C
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MEMORANDUM OPINION 1
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Appellant Kurley James Johnson was charged by indictment with three
counts of indecency with a child by contact. Each count alleged an offense
against a different complainant. Appellant pled not guilty to each count. The jury
found him guilty on each count and, as to each count, assessed punishment at
imprisonment for life. The trial court sentenced him accordingly and ordered the
1
See Tex. R. App. P. 47.4.
three life sentences to be served consecutively. Appellant brings two points on
appeal, arguing that the evidence is insufficient to support each of his three
convictions for indecency with a child and that the trial court reversibly erred by
allowing an expert witness to testify that the complainants had not been coached.
Because the evidence is sufficient to support the jury’s verdict and because the
trial court committed no reversible error, we affirm the trial court’s judgment.
Brief Summary of Facts
The complainants are referred to by pseudonyms: Count 1—Pseudonym
120002A (“Avery”), Count 2—Pseudonym 120002C (“Lala”), and Count 3—
Pseudonym 120002D (“Nikki”).
On December 24, 2011, Appellant was at the home of his relative M.J.
M.J.’s daughters Lala and Nikki were there with their friends Avery and Avery’s
sister, CC. Later that same day, Avery made an outcry to her mother, who told
M.J. Avery, Lala, and Nikki (collectively “Complainants”) said that Appellant had
placed his hand on their genitals over their clothes. M.J. and his son were also in
the house when those acts occurred.
About a week later, Complainants’ mothers filed a police report listing
Appellant as a suspect for indecency with a child by sexual contact. Officers took
the reports, filled out a pseudonym sheet for each complainant, and forwarded the
information to the Criminal Investigative Division (“CID”). Following CID
procedure, the CID did not personally interview the children involved in the report
but instead went to Patsy’s House—a child advocacy center—which has forensic
2
interviewers trained to speak with children in these cases. Complainants were
interviewed by Shannon May, a forensic interviewer for Patsy’s House.
At trial, Avery testified that Appellant picked her up, placed her on his lap,
and rubbed his hand over her genital area for “[a] few seconds” while they played
a game of Monopoly. Appellant stopped when Avery asked to use the bathroom.
Lala testified that on the same day, Appellant touched her “private area” as she
was playing a computer game in the living room. She testified that he moved his
hand while he touched her but said that she was too embarrassed to explain how
he moved it. Lala said that Appellant stopped when she moved to another
couch. Although Nikki was unable to testify whether she was lying down,
standing up, or sitting down when the incident occurred, she also testified that
Appellant placed his hand on her genitals over her clothes, but she said that he
kept his hand still.
May also testified at trial. May had completed training in conducting
forensic interviews with children who had allegedly been sexually molested. She
had also completed a five-block training course through the State of Texas and
additional national forensic interview training.
At trial, May explained that her interview process was a semi-structured
narrative process; some parts of the interviews were therefore the same with all
the children. She testified,
I want to make sure that they understand the difference in truth and
lie. I want to make sure that they’re kind of developmentally on
target so I’m asking questions that they understand. And then I’m
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just trying to ask them in a way that’s free narrative, so from their own
recall, they can put words to their own story.
All four children were interviewed, but CC did not describe a completed
offense of indecency with a child during May’s interview.
The State asked May if there was “anything else significant about the
interviews and the way the children answered their questions.” May testified that
“[t]here was nothing that [the children] stated that would make [her], based on
[her] experience, think that there was any coaching.” Appellant objected to May’s
statement, asserting that the statement was intended to “bolster the credibility of
the witness.” The trial court overruled Appellant’s objection.
Sufficiency of the Evidence
In his first point, Appellant argues that the evidence of intent to arouse or
gratify is insufficient to support the jury’s 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. 2 This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. 3
2
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).
3
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
4
The trier of fact is the sole judge of the weight and credibility of the
evidence.4 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.5 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.6 We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution.7
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.8 In determining the sufficiency of the evidence to show an
appellant’s intent, and faced with a record that supports conflicting inferences, we
“must presume—even if it does not affirmatively appear in the record—that the
4
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170.
5
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
6
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
7
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
8
Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
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trier of fact resolved any such conflict in favor of the prosecution, and must defer
to that resolution.” 9
Section 21.11 of the penal code provides in pertinent part,
(a) A person commits an offense if, with a child younger than 17
years of age, whether the child is of the same or opposite sex, the
person:
(1) engages in sexual contact with the child or causes the
child to engage in sexual contact . . . .
....
(c) In this section, “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 anus, breast, or any part of the genitals of a
child . . . 10
It is well established that intent may be inferred from an accused’s behavior
and words as well as from the surrounding circumstances.11 Avery, who was
eleven, testified that she went into the kitchen to the table where Appellant and
the other children were playing Monopoly. Appellant put her in his lap, put his
hand “at” her “front private” over her clothes, and moved his hand up and down.
Avery did not testify that any adult other than Appellant was in the room. There is
9
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
10
Tex. Penal Code Ann. §21.11(a)(1) (West 2011).
11
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.]
1981); Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet.
ref’d); see Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
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no evidence that Appellant said anything significant to the determination of intent,
but he stopped only when Avery got up and walked away. Lala testified that he
did essentially the same thing to her on that same day and stopped when she
moved away from him. Although Nikki was unable to provide detail, she testified
that Appellant touched her genitals through her clothing with his hand.
Avery’s sister CC testified that Appellant rubbed her right hip and that when
Avery was sitting in his lap, although CC could not see his hand moving, she saw
his left shoulder moving.
Thus, the evidence shows that Appellant touched and rubbed the genitals
of two of the complainants and touched the genitals of the third complainant. He
rubbed the hip of a fourth girl, who testified that she saw his arm moving while
Avery was sitting in Appellant’s lap. The evidence that Appellant engaged in
sexual contact with each of the three girls on the same day suggests that the
contact was not accidental or inadvertent. Nothing in the context of the fondling
suggests that a nonsexual explanation for the contact exists. Additionally, the
testimony suggests that Appellant was trying to hide his actions by engaging in
the touching below the level of the table or when the respective child was alone.
Considering the record as a whole, and employing the appropriate standard of
review, we hold that the evidence is sufficient to support the jury’s determination
that Appellant fondled each of the three girls with intent to arouse or gratify his
sexual desire. We overrule Appellant’s first issue.
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Opinion Testimony of Interviewer
In his second point, Appellant argues that the trial court reversibly erred by
allowing May to testify that she saw no evidence of coaching when she
interviewed the children because the opinion constituted improper bolstering of
the children’s testimony. Technically, May did not testify that in her opinion they
had not been coached. Rather, she testified that “[t]here was nothing that
the[ children] stated that would make [her], based on [her] experience, think that
there was any coaching.” That is, she said that she saw no evidence of coaching,
which is permissible. 12 We see no expression of May’s opinion of the truthfulness
of the children. 13 We therefore hold that the trial court did not abuse its discretion
by admitting May’s testimony. But even if, as Appellant argues, May’s objected-to
testimony was an expression of her opinion of the truthfulness of the children, and
therefore inadmissible, 14 a conclusion we do not reach, Appellant suffered no
harm.15 Trial counsel’s skillful cross-examination of May revealed that, although
she did not suspect coaching, she could not know for a certainty, or even a
12
See Schutz v. State, 957 S.W.2d 52, 70, 73 (Tex. Crim. App. 1997);
Cantu v. State, 366 S.W.3d 771, 777 (Tex. App.—Amarillo 2012, no pet.).
13
See Schutz, 957 S.W.2d at 73; Cantu, 366 S.W.3d at 777.
14
See Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993).
15
See Tex. R. App. P. 44.2(b).
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probability, that the children’s testimony had not been influenced. We overrule
Appellant’s second point.
Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgments.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 16, 2015
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