NUMBER 13-12-00297-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BILLY RAY KNOX, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 410th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
By two issues, appellant, Billy Ray Knox, appeals his conviction for aggravated
sexual assault of a child under the age of fourteen, a first-degree felony. See TEX.
PENAL CODE ANN. § 22.021(a)(1)(B) (West 2011). Appellant argues that the evidence is
insufficient to support his conviction and that the trial court improperly assessed
attorneys’ fees despite originally finding appellant to be indigent. We affirm as modified.
I. BACKGROUND1
The State indicted appellant on two counts of aggravated sexual assault of S.G.,
a minor under the age of fourteen.2 See id. Appellant plead not guilty, and the case
was tried to a jury. The jury returned a verdict of guilty on one count and not guilty on
the other. Appellant was sentenced by agreement to twenty years’ imprisonment. This
appeal followed.
At trial, the State introduced testimony from Stephanie Evans, a therapist treating
S.G., that S.G. made an outcry to her stating that “[appellant] put his private in my
mouth.” Sergeant J.D. Thomas, a police officer with the Montgomery County Sherriff’s
Department who interrogated appellant under Miranda warnings, testified that he asked
appellant if S.G.’s mouth “was on his penis for ten seconds or longer”, and testified that
appellant responded “yeah or yes.” A video recording of this portion of Thomas’s
interview with appellant was displayed to the jury and confirmed Thomas’s testimony.
Veronica Sjolander, a special investigator for crimes against children at the Montgomery
County District Attorney’s Office, testified that appellant admitted to her during an
interview that the victim’s mouth touched his penis “in the bathtub.” The video of
Sjolander’s interview with appellant was admitted without objection by the trial court and
confirmed her testimony regarding appellant’s statements. S.G. testified at trial to
abuse by appellant and other men.
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
2
S.G. was approximately five years old at the time the crimes were committed.
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II. ANALYSIS
A. Sufficiency of the Evidence
Appellant argues that the evidence is insufficient to support his conviction for
aggravated sexual assault because S.G. denied on the stand that appellant ever
penetrated S.G.’s mouth with his genitals as charged in the indictment. Appellant
argues that in light of this denial, no rational fact-finder could find appellant guilty of the
charged offense.
1. Standard of Review
In evaluating the sufficiency of the evidence supporting a conviction, our inquiry
is “whether, after viewing the evidence in a light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is the role of the trier of fact to
resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from
that evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
Jackson, 443 U.S. at 318–19 (1979)). The trier of fact, in this case the jury, is the sole
judge of the credibility of witnesses and the weight, if any, to be given to their testimony.
Garcia, 367 S.W.3d at 686–87; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010). The State may prove the elements of an offense by either direct or
circumstantial evidence. Hooper, 214 S.W.3d at 13. In an evidentiary sufficiency
review, “circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”
Id. If the record could support conflicting inferences, we presume that the fact finder
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resolved the conflict in favor of the prosecution and defer to that resolution. Garcia, 367
S.W.3d at 687.
2. Applicable Law
We measure the sufficiency of the evidence supporting a conviction “by the
elements of the offense as defined by the hypothetically correct jury charge for the
case” applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011) (citing Malik v. State 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge “accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.
In this case, the State was required to prove beyond a reasonable doubt that
appellant, (1) intentionally or knowingly, (2) caused the penetration of the mouth of the
victim, (3) by his sexual organ. TEX. PENAL CODE ANN. § 22.021(a)(1)(B). In the context
of sexual assault of a child, “outcry” testimony alone can be sufficient evidence to
support a conviction. Rodriguez v. State, 819 S.W.2d 871, 873–74 (Tex. Crim. App.
1991); Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet).
There is no requirement that the child victim testify as to penetration; the State may
prove that element of the offense by circumstantial evidence. Rodriguez, 819 S.W.2d at
873–74; Ozuna, 199 S.W.3d at 606. Even if the victim recants or denies her outcry
statements when testifying at trial, the jury is free to disbelieve the victim’s recantation
and credit her previous statements. Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—
Corpus Christi 2008, pet. ref’d) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991)).
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3. Discussion
The following exchange occurred between S.G. and the prosecutor on direct
examination:
Prosecutor: [D]id [appellant] ever put his front private in your
mouth? Do you remember anything like that?
S.G.: No, ma’am.
Appellant argues that even when viewing the evidence in the light most favorable
to the verdict, a rational finder of fact could not conclude that appellant violated the
statute when the victim denied on the witness stand that appellant ever committed the
alleged conduct against her. We disagree.
Outcry statements of children, standing alone, can be sufficient to support a
conviction in sexual assault cases. Rodriguez, 819 S.W.2d at 873–74. If a child
recants or denies her outcry statements when testifying at trial, the jury is free to decide
which of the child’s statements to credit, as it is with any other witness. Chambers, 805
S.W.2d at 461; Saldana, 287 S.W.3d at 60. Assuming without deciding that S.G.’s
statements constituted a recantation of her outcry statements, the jury was free to
disbelieve her denial. In this case, the jury evidently gave more credit to S.G.’s outcry
statements than to that single statement during her testimony at trial. Chambers, 805
S.W.2d at 461; Saldana, 287 S.W.3d at 60. Because S.G.’s outcry statements to
Evans—the admission of which appellant does not challenge on appeal—would be
sufficient evidence to support appellant’s conviction even if S.G. did not testify, we
conclude that the State met its burden of offering evidence from which a reasonable jury
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could conclude that appellant was guilty beyond a reasonable doubt of the charged
offense.3 We accordingly overrule appellant’s first issue.
B. Attorneys’ Fees
In his second issue, appellant argues that the trial court improperly assessed
$12,730.75 in attorneys’ fees despite earlier finding appellant to be indigent. A
defendant who is determined by the trial court to be indigent is presumed to remain
indigent for the remainder of the proceedings absent a material change in the
defendant’s financial circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
Supp. 2011). If the trial court does assess attorneys’ fees against a defendant who it
earlier determined to be indigent, the record must reflect that the trial court heard
evidence that the defendant’s financial circumstances changed. Mayer v. State, 309
S.W.3d 552, 556–57 (Tex. Crim. App. 2010). The State concedes that the trial court
previously determined that appellant was indigent, that there is no evidence in the
record that appellant’s financial circumstances have materially changed to alter his
indigent status, and asks us to modify the judgment. See TEX. R. APP. P. 43.2(b)
(appellate court may modify the judgment and affirm as modified). We therefore sustain
appellant’s second issue and modify the judgment to delete the $12,730.75 in attorneys’
fees from the administrative fee calculation.
3
Even if the outcry statements would not be sufficient standing alone, the State offered two
videotaped statements into evidence in which appellant admits to penetrating S.M.’s mouth with his
sexual organ. The outcry statements are sufficient to provide the modicum of evidence necessary to
corroborate appellant’s extra-judicial confessions. See Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim.
App. 2002) (holding that the State need only produce some independent evidence that the child victim
was sexually assaulted when the defendant made an extra-judicial confession, even when the defendant
repudiated that confession at trial). Appellant does not challenge the admission of either videotaped
statement on appeal.
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III. CONCLUSION
We modify the judgment to delete the $12,730.75 in attorneys’ fees and affirm as
modified.
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
4th day of April, 2013.
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