Affirmed and Memorandum Opinion filed December 30, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00710-CR
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OLUMUYIWA AKINTUNDE ADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 11
Harris County, Texas
Trial Court Cause No. 1413923
M E M O R A N D U M O P I N I O N
A jury convicted appellant Olumuyiwa Akintunde Adams of failure to report child abuse, and the trial court sentenced him to 180 days= confinement in the Harris County Jail and a $2000 fine. In three issues, appellant alleges (1) the failure to report child abuse statute is unconstitutionally vague, (2) the evidence is legally insufficient to prove that complainant=s mental, physical or emotional welfare was harmed, and (3) the evidence is factually insufficient to prove the prosecution was brought within the two-year statute of limitations. We affirm.
I. Background
Appellant and his wife, Aleshia Aikens-Adams (Aikens), have four children: R.A., B.A., M.A. (complainant), and S.A. On the morning of November 2, 2006, Aikens found blood in six-year-old S.A.=s panties while getting her ready for school. After S.A. claimed that sixteen-year-old R.A. had stuck his Athing@ in her Abutt,@ Aikens sought emergency medical attention. S.A. had vaginal and rectal injuries and required emergency reconstructive surgery. While S.A. was being transferred for surgery, Aikens decided that she wanted to have complainant (then eight years old) examined as well.
Detective Joe King of the Harris County Sheriff=s Office arrived at the hospital to investigate S.A.=s assault. Complainant approached Detective King and gave him a statement that led him to investigate appellant and Aikens[1] for failure to report child abuse. At trial, Detective King testified that complainant told him R.A. had sexually assaulted her approximately three years earlier and she had told B.A. about the previous sexual assaults. B.A. then told their parents, and they threatened to kick R.A. out of the house, but complainant persuaded them not to. Afterwards, R.A. continued to assault complainant; however, complainant said she usually lied to her parents when they asked her if the abuse had reoccurred. Complainant stated that she was talking to Detective King because she was scared and wanted the abuse to stop.
At appellant=s home, police found six pairs of girls= panties ranging in size from four to eight with possible blood stains on them, including one size-eight pair around which a Adust ring@ had collected. Deputy William R. Campbell stated that the dust ring showed that the panties had been on the floor for some time, though he could not tell precisely how long. Appellant and Aikens were subsequently arrested for failure to report child abuse.
At trial, complainant testified that R.A. had abused her on multiple occassions, and the record contains evidence of multiple instances of abuse. The jury found appellant guilty of failure to report child abuse and this appeal followed.
II. Sufficiency of the Evidence
Appellant=s second and third issues concern the sufficiency of the evidence. In Texas, a person commits a class B misdemeanor if he has Acause to believe that a child=s physical or mental health or welfare has been or may be adversely affected by abuse@ and knowingly fails to report it to authorities immediately. See Tex. Fam. Code Ann. '' 261.101(a), 261.109 (Vernon 2002 & Supp. 2008). The State is barred from prosecuting a defendant for a class B misdemeanor that occurred more than two years prior to the date on which the information is filed. See Tex. Code Crim. Proc. Ann. art. 12.02 (Vernon 2005). Appellant specifically challenges the sufficiency of the evidence to show that (1) he had the requisite Acause to believe@ R.A. had abused complainant within the two-year limitations period and (2) complainant=s physical or mental health or welfare was harmed.
A. Statute of Limitations
In his third issue, appellant challenges the factual sufficiency of the evidence to support a finding that he developed Acause to believe@ that R.A. had abused appellant within the two-year statutory limitations period. We therefore limit our factual sufficiency review to that context. See White v. State, 50 S.W.3d 31, 41 (Tex. App.CWaco 2001, no pet.) (limiting factual sufficiency review to Acause to believe@ element when appellant framed issue in that limited context). Where there is some evidence that an action is time-barred and the defendant requests a jury instruction on the limitations defense, the State must prove beyond a reasonable doubt that the charged offense occurred within the applicable statute of limitations. See Proctor v. State, 967 S.W.2d 840, 843B44 (Tex. Crim. App. 1998). Because the charging instrument in this case was filed November 3, 2006, the State was required to prove that on or after November 2, 2004, appellant developed cause to believe that R.A. had abused complainant.[2]
In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury=s resolution of that conflict, and we do not intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony. See id. at 417; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe all, some, or none of the testimony presented and can disbelieve a witness=s recantation. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); In re A.B., 133 S.W.3d 869, 872 (Tex. App.CDallas 2004, no pet.). In our review, we discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict, Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003), and if we determine the evidence is factually insufficient, we must explain in exactly what way we perceive the conflicting evidence to greatly preponderate against conviction. Watson, 204 S.W.3d at 414B17. We engage in the same review of the factual sufficiency of the evidence in the statute of limitations context. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (determining factual sufficiency standard applies to rejected defenses); Proctor, 967 S.W.2d at 843B44 (recognizing statute of limitations as a defense); Lemell v. State, 915 S.W.2d 486 (Tex. Crim. App. 1995) (recognizing legitimacy of sufficiency review in statute of limitations context).
Complainant testified that R.A. sexually abused her Aa lot of times,@ and the record contains evidence of multiple incidents of sexual assault which occurred at various points in time. Appellant=s argument focuses on four incidents in the record: (1) R.A.=s Aaccidental@ touching of complainant while either clothing or bathing her, (2) B.A.=s finding R.A. on top of complainant with their clothes off in appellant=s bedroom, (3) the police=s discovery of panties and other items with possible blood stains on them in appellant=s home, and (4) R.A.=s guilty plea to sexually abusing complainant on September 1, 2005.
Appellant maintains that the first two incidents both occurred outside the limitations period. In the first incident, complainant told her parents that R.A. touched her on her Apanties.@ Aikens testified that she and appellant determined the incident to be accidental and non-sexual. However, Aikens also testified that appellant punishes the children with whippings and whipped R.A. after learning of the incident. But even if the incident was intentional and sexual in nature, the evidence only supports the incident as having occurred well outside the two-year limitations period, as appellant asserts.
In the second incident, B.A. walked into appellant=s bedroom to find R.A. naked and on top of complainant, who was also naked. Appellant dismisses this incident as occurring outside the limitations period, but the jury was faced with conflicting evidence regarding when this incident occurred and whether appellant was aware of it.[3]
On one hand, some evidence supports a finding that this incident occurred within the limitations period and that appellant had cause to believe it had occurred. Complainant testified at trial that the incident occurred when she was eight years old and in the second grade (the 2005B2006 school year)Cwell within the limitations period. B.A. acknowledged previously telling a CPS caseworker that he reported the incident to his parents, who whipped R.A., warned him not to do it again, and gave him Aone last chance.@ Also, the jury viewed a recording of Susan Odhiambo=s forensic interview of B.A. In the interview, B.A. states that he informed Aikens of the incident on the day it occurred and then she and appellant had a long talk with R.A., decided against kicking him out, took away his television privileges for three months, and made complainant sleep with them Afor a pretty long time.@ This evidence supports appellant=s conviction by showing he had cause to believe R.A. was abusing complainant within the limitations period.
On the other hand, some evidence regarding this incident contradicts the evidence supporting appellant=s conviction. At trial, both B.A. and complainant recanted their previous statements, claiming they had lied about telling their parents of the incident and about R.A.=s subsequent punishment. In his taped forensic interview with Odhiambo, B.A. stated that the incident occurred when he was eight years old and in the third grade (the 2003B2004 school year) at a house the family moved from when he was in the fifth grade (the 2005B2006 school year). But he claimed at trial that the incident occurred when he was in the fourth grade (the 2004B2005 school year), complainant was five or six (complainant was actually six or seven at that time), and the family was living in a house that they left Aa couple of months@ before S.A. was assaulted on November 2, 2006. Aikens denied that B.A. ever told her of the incident. Instead, Aikens stated that on November 2, 2006 complainant told her that R.A. had touched her at the family=s former home, which she claimed the family had moved from approximately one year and seven months before S.A. was assaulted. Additionally, Dr. Robert DeAngelo (who met with appellant and Aikens following their arrest) testified that appellant stated he was only aware of the Aaccidental@ touching incident (discussed as the Afirst incident@ above), which occurred outside the limitations period.
Although B.A. and complainant recanted their previous statements suggesting appellant had cause to believe R.A. was abusing appellant, the jury was free to disbelieve their recantations and believe only their testimony that appellant was aware that B.A. found R.A. abusing complainant in appellant=s bedroom, and therefore had cause to believe R.A. was abusing complainant. See Chambers, 805 S.W.2d at 461. The jury was also free to disbelieve B.A.=s inconsistent accounts regarding when that incident took place and to believe complainant=s testimony that the incident occurred within the limitations period. Fuentes, 991 S.W.2d at 271. Moreover, the jury was free to believe B.A=s testimony that the family only moved from the house a couple of months before S.A.=s assault and disregard the other accounts of when the family moved given by B.A. prior to trial and in Aikens=s testimony at trial. See Watson, 204 S.W.3d at 417; Fuentes, 991 S.W.2d at 271.
In sum, the jury was faced with conflicting evidence regarding whether appellant developed cause to believe R.A. was abusing complainant, but resolved that conflict in favor of conviction. We are not at liberty to order a new trial simply because we may disagree with the jury=s resolution of conflicting evidence. See Watson, 204 S.W.3d at 417; Fuentes, 991 S.W.2d at 271. Further, we cannot say, based on our neutral review, that the conflicting evidence in the record contains an objective basis for concluding appellant=s conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict. We conclude the evidence is factually sufficient to prove that appellant developed the requisite Acause to believe@ within the limitations period.[4] We therefore overrule appellant=s third issue.
B. Evidence of Harm to Complainant=s Mental or Physical Health or Welfare
In his second issue, appellant contends that the evidence is legally insufficient to prove that complainant=s physical or mental health or welfare was harmed by R.A.=s abuse. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes, 991 S.W.2d at 271. The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).
Appellant maintains that because neither forensic interviewer Odhiambo (who only met with complainant once) nor Dr. DeAngelo (who, according to the record, only met with appellant and Aikens) could testify to any actual harm suffered by complainant, there is insufficient evidence to prove complainant=s mental, emotional or physical welfare was harmed. We begin by noting that, contrary to appellant=s interpretation, the offense of failure to report child abuse does not require proof of actual harm to complainant. Rather, the statute provides that a person commits an offense if he has Acause to believe that a child=s physical or mental health or welfare has been or may be adversely affected by abuse@ and knowingly fails to report it to authorities immediately. See Tex. Fam. Code Ann. '' 261.101(a), 261.109 (Vernon 2002 & Supp. 2008). Thus, the statute requires, at the least, proof that complainant was potentially harmed by abuseCit does not require proof of actual harm. See Porter v. State, 121 S.W.3d 404, 408 (Tex. App.CAmarillo 2003, pet. ref=d) (considering, in sufficiency review, evidence that there is a potential for harm any time a child is left alone in a vehicle for an extended period of time as weighing in support of conviction for failure to report). As appellant admits, Odhiambo and Dr. DeAngelo testified that sexual abuse generally affects the mental or physical welfare of a child, and ample evidence established complainant had been abused. That evidence sufficiently demonstrates the potential harm required to convict appellant. See id.
Furthermore, even assuming that proof of actual harm was required, there is sufficient evidence in the record that R.A.=s abuse actually harmed complainant=s physical or mental welfare. Complainant testified that R.A. sexually assaulted her Aa lot of times@ and that she screamed during the abuse on at least one occasion, causing R.A. to hit her. She also testified that she bled twice from the abuse. Detective King testified that complainant told him she was talking to him because she was scared and wanted the abuse to stop. The jury as fact-finder may have reasonably inferred from this evidence that R.A.=s abuse actually harmed complainant=s physical or mental health or welfare. See Clewis, 922 S.W.2d at 133 (jury may draw reasonable inferences from basic facts to ultimate facts); see also Porter, 121 S.W.3d at 408 (considering, in sufficiency review, evidence that child was upset and crying as demonstrating harm supporting conviction for failure to report). Thus, we conclude the evidence is legally sufficient, and we overrule appellant=s second issue.
III. Constitutionality of the Statute
In his first issue, appellant contends that use of the term Aimmediately@ in Texas Family Code section 261.101(a) renders the statute unconstitutionally vague on its face. Specifically, appellant argues the statute is unconstitutionally vague in all of its applications because the term Aimmediately@ is unconstitutional as a matter of law. Appellant acknowledges that he presents the Aexact issue@ addressed in our prior opinion in Rodriguez v. State, 47 S.W.3d 86, 88B89 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).
As with any challenge to a statute=s constitutionality, we begin by presuming the statute is valid and the legislature has not acted unreasonably or arbitrarily in enacting it. See Cotton v. State, 686 S.W.2d 140, 144 (Tex. Crim. App. 1985); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Ex parte Anderson, 902 S.W.2d 695, 698 (Tex. App.CAustin 1995, pet. ref'd). In making a challenge to the facial constitutionality of a statute, appellant must first satisfy the burden of establishing that the statute is unconstitutional as applied to him. Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989); Rodriguez, 47 S.W.3d at 88. We held that the same statute challenged here was sufficiently clear as applied to the appellants in Rodriguez, who never reported any abuse after witnessing complainant=s mother abuse him while appellants were living with them for approximately two months.
Here, appellant presents no argument to satisfy his burden of proving the statute is unconstitutional, either as applied to him specifically, or, necessarily, in all of its applications. See Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999) (stating that to be vague in all its applications, a statute must necessarily be vague as to the litigant). Even if appellant had presented such an argument, the record reflects that appellant was aware of abuse by R.A. that occurred at least six months before the filing of the information, as discussed above. But appellant decided to give R.A. Aone last chance@ instead of reporting the abuse to authorities. Thus, the record shows that appellant apparently never planned to report the abuse, conduct clearly proscribed by the statute. See id.; Rodriguez, 47 S.W.3d at 89. We therefore follow our decision in Rodriguez and hold that appellant=s facial challenge fails because the statute is sufficiently clear as applied to him, and therefore, necessarily, not unconstitutionally vague in all of its applications. We overrule appellant=s first issue.
Having overruled all of appellant=s issues, we affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed December 30, 2008.
Panel consists of Justices Yates, Seymore, and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Aikens was tried jointly with appellant and found guilty. Her appeal is pending in this court in cause number 14-07-00709-CR.
[2] While the State contends on appeal that the evidence is sufficient to prove appellant=s prosecution was not time barred, it alternatively contends the charged offense is continuous in nature, i.e., one that is not committed by an overt act but by omission or neglect and continues as long as the neglect continues without excuse. We need not decide, however, whether the charged offense is continuous because we agree with the State=s primary contention that the evidence was factually sufficient for the jury to find beyond a reasonable doubt that appellant developed the requisite Acause to believe@ within the limitations period.
[3] Appellant also asserts that the State did not dispute that this incident occurred three years prior to the filing of the information but focused instead on the doctrine of continuous offenses. However, the record reveals the State primarily argued in closing that it had presented enough evidence to prove appellant had cause to believe R.A. was abusing complainant within the limitations period; the State relied on the theory of continuing offenses as an alternative theory. The jury was not charged under a continuous offense theory, but was instructed regarding appellant=s statute of limitations defensive theory. We generally presume the jury follows the trial court=s instructions in the manner presented. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (presuming jury followed court=s instructions as given). While this presumption is rebuttable, we have found no evidence in rebuttal. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
[4] Because we have found there is sufficient evidence in the record to support the jury=s implicit finding that the offense occurred within the limitations period, we need not address the remainder of appellant=s argument concerning whether the evidence is factually sufficient as to other incidents discussed in appellant=s brief. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (stating that guilty verdict will be upheld where there is sufficient evidence on one of the theories presented and declaring that the law does not require further speculation as to an appellant=s guilt).