In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00368-CR
____________________
BOBBY RAY HOUSTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 12,070JD
MEMORANDUM OPINION
A jury found appellant Bobby Ray Houston (Houston) guilty of criminal
solicitation of L.M.,1 a minor. See Tex. Penal Code Ann. § 15.031(a) (West Supp.
2014). The jury assessed punishment at ten years in prison and a ten thousand
1
We identify the victims by using initials that disguise their identities. See
Tex. Const. art. I, § 30(a)(1) (granting crime victims the “right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
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dollar fine. In a single issue, Houston challenges the legal sufficiency of the
evidence to support the verdict. We affirm.
EVIDENCE AT TRIAL
Testimony of L.M.
L.M. testified that she lives with her grandmother and great-grandmother.
She stated that Houston lives “down the road” from where she lives, and that on
September 28, 2013, when L.M. was sixteen years old, Houston came to her house
in the morning when she was alone. L.M. testified that when Houston came over,
her grandmother and great- grandmother had been gone for a few minutes. L.M. let
Houston inside the house through the front door, and she locked the door after
Houston came inside. L.M. explained that she and Houston went to her bedroom,
where they talked about “boys and stuff[,]” and that Houston touched her on her
shoulder and told her she was beautiful. L.M. said Houston asked her “to have
sex[,]” but they did not have sex because her grandmother came back.
L.M. testified that when her grandmother returned she went to open the door
for her grandmother, and Houston went “[t]o go hide.” L.M. explained that her
grandmother was upset and started searching for Houston once she was inside the
house. L.M. testified that she felt uncomfortable and a little upset when Houston
asked her to have sex with him.
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L.M. testified that Houston had previously called her on the phone for about
a month, they had talked about boys, and that Houston had given her advice and
told her he wanted to have a relationship with her. L.M. explained she was nervous
and scared, and she agreed that a few days prior to the trial, she had signed an
affidavit of non-prosecution wherein she stated that she did not want to go to court.
L.M. agreed it was hard to talk in court in front of Houston.
Testimony of S.S.
S.S. testified that she is L.M.’s grandmother and had been “raising” L.M. for
most of L.M.’s life. She agreed she left L.M. at home by herself on the morning of
September 28, 2013, but S.S. testified that she returned to the house about fifteen
minutes later. S.S. said that when she returned to the house, she could see a head in
L.M.’s bedroom window. S.S. said she knocked on the door, saying “[l]et me in[,]”
and L.M. opened the door. S.S. testified that she was upset and she “grabbed a
knife, and . . . went looking for whoever was in the house.” S.S. said she opened
the door to the bathroom and entered, and initially she did not see anything. S.S.
further explained as follows:
[S.S.]: . . . That’s when I went to the bathtub, and the bathtub has a
shutter that you pull back. And when I pulled it back, there stood
Bobby Ray.
[ATTORNEY]: In the bathtub?
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[S.S.]: That’s right.
[ATTORNEY]: With the shutter closed?
[S.S.]: With the shutter shut.
[ATTORNEY]: Did he have his clothes on?
[S.S.]: Yes.
[ATTORNEY]: Did you say anything to him?
[S.S.]: Yeah, “get out, get out, get out.”
S.S. testified that, prior to that day, she had noticed L.M. was “on the phone
all the time[,]” and L.M. would not let S.S. into L.M.’s bedroom and blocked the
door with a chair. S.S. also explained that Houston had been to their house before
that day, and she had spoken to Houston about talking to L.M. prior to September
28. S.S. also testified that after the incident on September 28, she asked for a
criminal trespass warrant to be served on Houston.
S.S. explained that she signed a form saying she did not want to go to trial
on the case because she knew it was going to be upsetting to L.M. and S.S. didn’t
want to put L.M. through more pain. But, S.S. agreed that Houston should be held
accountable for his actions.
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Testimony of Captain Carter
Captain Carter of the Jasper County sheriff’s department testified that on the
evening of September 28, 2013, he responded to a call at S.S.’s residence. He
agreed that he served a criminal trespass warning on Houston that S.S. had
requested “a day or two” after September 28, and that the warning advised
Houston to “stay away from that resident[.]”
Testimony of Officer Jordan
Officer Jordan (Jordan), an investigator with the Jasper County sheriff’s
department, testified that she was dispatched to S.S.’s residence on September 28,
2013. Officer Jordan testified that she obtained statements from S.S. and L.M., that
S.S. was “real upset, very upset[,]” and that L.M. was very quiet. Jordan explained
that at first L.M. would not speak much to Jordan and Jordan believed “that’s
[L.M.’s] way of being upset[.]”Jordan did not agree that L.M. was nervous,
shaking, stuttering, or trembling, and Jordan stated that L.M. “was just very, very
quite [sic] and would keep her head down and talked very softly and quietly, you
know, upset.”
Jordan testified that no one tested the window in L.M.’s room for DNA or
fingerprints and that she did not feel such testing was necessary because Houston
“had been caught inside the house.” Jordan agreed that, based on statements by
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S.S. and L.M., Jordan obtained a warrant for Houston’s arrest and that after
Houston’s arrest and after reading Miranda warnings to Houston, Jordan conducted
an interview with Houston. A video recording was made of Jordan’s interview of
Houston.
Video Interview of Houston
Jordan’s video interview of Houston was admitted into evidence and played
for the jury. In his videoed statement, Houston admitted to talking with L.M. about
running track and about reality shows and to being in the house on the day in
question. Houston admitted he went to the bathroom while he was in the house, but
he denied hiding in the bathroom. He also denied touching L.M., telling L.M. she
was pretty, and asking L.M. to have sex with him on that day or any other time.
Houston admitted he sometimes called the house but only if he was looking for one
of the nephews. He also admitted he sometimes went to the house where S.S. and
L.M. lived to mow the yard, move boxes, or help around the house.
ISSUE ON APPEAL
In a single issue, Houston argues that the evidence is legally insufficient to
prove that he “knowingly and intentionally solicited the minor victim.” In
particular he argues that the evidence was based on “nothing more than mere
speculation” and that L.M.’s testimony was “not sufficiently corroborated by other
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evidence[,]” such as eyewitness testimony, phone records, fingerprints, or DNA
evidence. The State responds that legal sufficiency does not require corroborating
DNA or “scientific evidence,” and that the jury could have found the testimony of
witnesses other than the victim as well as Houston’s Mirandized statement
sufficiently corroborating to support the verdict.
STANDARD OF REVIEW
In addressing a challenge to the legal sufficiency of the evidence, we review
the evidence in the light most favorable to the jury verdict to determine whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 & n.5
(Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307 (1979)); Hayes v.
State, 265 S.W.3d 673, 679 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).
“The same standard of review applies to cases involving direct or circumstantial
evidence.” Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
The jury is the sole judge of the credibility of witnesses and the weight to
afford the testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.
2000). Our review encompasses the totality of circumstances, but we may not
reweigh the evidence and substitute our judgment for that of the jury.
Vodochodsky, 158 S.W.3d at 509; King v. State, 29 S.W.3d 556, 562 (Tex. Crim.
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App. 2000); Hayes, 265 S.W.3d at 679. We resolve any inconsistences in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000). When, as here, the verdict results at least in part from the jury’s
consideration of circumstantial evidence, we view the evidence “in combination
and its sum total,” and “[i]t is the logical force of the circumstantial evidence, not
the number of links, that supports a jury’s verdict.” Evans v. State, 202 S.W.3d
158, 164, 166 (Tex. Crim. App. 2006); Hayes, 265 S.W.3d at 679.
ANALYSIS
A person may not be convicted of the offense of solicitation of a minor
on the uncorroborated testimony of the minor allegedly solicited
unless the solicitation is made under circumstances strongly
corroborative of both the solicitation itself and the actor’s intent that
the minor act on the solicitation.
Tex. Penal Code Ann. § 15.031(c). The corroboration that is required for the
offense of solicitation of a minor is analogous to the corroboration requirement
under the accomplice-witness statute. Lankford v. State, 255 S.W.3d 275, 277
(Tex. App.—Waco 2008, pet. ref’d) (comparing Tex. Penal Code Ann. § 15.031(c)
with Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005), and citing Richardson v.
State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985)). Due to the similarities
between these two statutes, the test for evaluating the sufficiency of the
corroboration evidence is the same under each. Richardson, 700 S.W.2d at 594. In
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assessing the sufficiency of the evidence corroborating the victim’s testimony, the
test used to evaluate such corroboration is to eliminate from consideration the
minor victim’s testimony and then determine whether there is other incriminating
evidence tending to connect the defendant with the crime. Lankford, 255 S.W.3d at
277 (citing Richardson, 700 S.W.2d at 594). It is not necessary that the
corroboration evidence directly link the accused with the crime or that it be
sufficient in itself to establish guilt. Richardson, 700 S.W.2d at 594 (citing
Shannon v. State, 567 S.W.2d 510 (Tex. Crim. App. 1978)).
Here, eliminating L.M.’s testimony from consideration, we conclude that the
State presented other evidence that tends to connect Houston with the offense of
solicitation of a minor. The record shows that S.S. testified that she had previously
talked to Houston about the fact he had been talking with L.M. prior to the day in
question. S.S. further testified that when she returned to her house about fifteen
minutes after she left L.M. in the house by herself, S.S. found the front door
locked, she saw someone in the house through the window, and after L.M.
unlocked the door to let S.S. inside, S.S. found Houston in the bathtub, fully
clothed and behind a shutter. Captain Carter and Officer Jordan with the sheriff’s
department were called to the house later the same day. S.S. and L.M. gave
statements to Officer Jordan, after which Jordan obtained a warrant for Houston’s
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arrest. S.S. had requested a criminal trespass warrant be issued for Houston after
the incident of September 28, 2013. Houston admitted he was in the house on the
day in question, he admitted he was talking with L.M., and he admitted being in
the bathroom when S.S. returned to the house.
Appellant’s sole challenge under his legal sufficiency argument is that no
“independent evidence” supported or corroborated the victim’s testimony. The jury
was free to believe the witnesses’ testimony over the version of the incident
provided by Houston in his recorded statement. See Curry, 30 S.W.3d at 406. The
jury was permitted to draw reasonable inferences from the evidence, and we must
defer to the jury as the finder of fact. See Threadgill v. State, 146 S.W.3d 654, 663
(Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App.
2000). We find that there was sufficient corroborating evidence presented to the
jury to support L.M.’s testimony that Houston solicited her. See Lankford, 255
S.W.3d at 277-78. Viewing the evidence in the light that supports the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt
that Houston solicited L.M., a minor, for sexual intercourse. We overrule
Houston’s issue on appeal.
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AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 29, 2015
Opinion Delivered October 28, 2015
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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Bobby Ray Houston v. State
Combined Opinion