Opinion
NO. 02-17-00161-CR
04-19-2018
GEORGE MATTHEW SAPP APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 57,404-A MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
A jury found Appellant George Matthew Sapp guilty of two counts of endangering a child, and the trial court sentenced him to twenty-four months in jail for each count and ordered the sentences to run concurrently. See Tex. Penal Code Ann. § 22.041(c), (f) (West 2011). In a single issue, Sapp challenges the sufficiency of the evidence to support his convictions. We will affirm.
II. FACTUAL BACKGROUND
Sapp lived with his common-law wife Priscilla and their three daughters: Emily, who was seven years old; Brooke, who was six years old; and Allison, who was five years old. While attending church, Sapp and Priscilla met a nineteen-year-old woman named Dusti who told them that she was having some problems at home, and they allowed her to move in with them.
To protect the anonymity of the children in this case, we will use aliases to refer to them and to their mother. See Tex. R. App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
Shortly after Dusti moved in, an incident occurred involving Dusti and Brooke. Priscilla stepped out of the shower and saw Dusti's hand under Brooke's skirt. Priscilla told Dusti, "[Y]ou hurt my little girl." Priscilla waited until Sapp arrived home from work before she told him about what she had witnessed. When Sapp learned what had occurred, he made a recording of Dusti confessing to the incident so that he could file a police report "in case [she did] this again." After making the recording, neither Sapp nor Priscilla contacted any law enforcement agency to report the incident. Instead, Sapp and Priscilla permitted Dusti to continue living with them, even putting Dusti in a role of continuing authority over their daughters by having her assist with their homeschooling.
Approximately six months later, on the morning of April 1, 2015, Priscilla walked into the room where her three daughters were watching television and heard Brooke say, "Stop, quit. . . . that's inappropriate touching." Priscilla saw Brooke sitting on the couch, and Dusti was sitting close to Brooke. Dusti's face indicated that Priscilla had interrupted something. Dusti said, "I messed up." Priscilla told Dusti "to get out" and then physically assaulted Dusti. Dusti left the house, and Priscilla called Sapp, who came home from work, and also called the police to report that Brooke had been sexually assaulted.
After the first incident, Priscilla taught Brooke to say "inappropriate touching" out loud if someone was touching her in an inappropriate way.
Officer Rodney Burchett with the Wichita Falls Police Department responded to the call. When Officer Burchett arrived, he spoke to Sapp, who said that he had received a phone call from Priscilla informing him that she had caught Dusti in the act of touching Brooke's "buttocks area." Sapp explained that Dusti had previously sexually assaulted Brooke during the preceding six months and that he had a recording of Dusti confessing to that sexual assault.
Detective Todd Henderson with the Wichita Falls Police Department met with Sapp and Priscilla at their home. Priscilla told Detective Henderson that she and Sapp had pulled Brooke aside and that she had disclosed that Dusti had touched her "pee pee." Detective Henderson took a recorded statement from Sapp at the police station, during which Sapp said that he "never did trust" Dusti after the first time she sexually assaulted Brooke. When Detective Henderson asked Sapp why he decided to allow Dusti to continue living in his home if he did not trust her after she sexually assaulted Brooke the first time, Sapp responded, "Because I'm stupid."
Because Sapp and Priscilla had allowed Dusti continued access to their daughters after Dusti first sexually assaulted Brooke, Child Protective Services removed all three children from Sapp and Priscilla's care, and both Sapp and Priscilla were charged with endangering a child. Priscilla pleaded guilty and signed a judicial confession admitting to endangering Brooke by permitting Dusti to have continued access to Brooke after learning that Dusti was sexually abusing her; Priscilla was on felony probation at the time of Sapp's trial.
After the three girls underwent forensic interviews, police charged Dusti with sexual abuse of two of the girls—Brooke and Allison.
Sapp was charged with one count of endangering Brooke and one count of endangering Allison.
During the trial, the jury heard the recording of the confession that Sapp had obtained from Dusti in which she said that she decided to "sexually molest three little ones," including Brooke. The jury also heard testimony from various witnesses who stated that child sexual abuse causes physical and mental impairment, that child sexual abuse can leave emotional scars that victims bear for a lifetime, that a person who has admitted to or has been caught in the act of sexually abusing or molesting a child is a danger to reoffend the specific victim if allowed continued access, and that a father has a legal duty to protect the children who live in his home from sexual abuse and to promptly report sexual abuse if he learns that one of his children has been sexually abused.
After hearing the testimony above, the jury found Sapp guilty of two counts of endangering a child as alleged in the indictment. The trial court heard evidence at punishment and sentenced Sapp to twenty-four months' confinement on each count and ordered the sentences to run concurrently. Sapp then perfected this appeal.
III. SUFFICIENT EVIDENCE SUPPORTS CONVICTION
In his sole issue, Sapp challenges the sufficiency of the evidence to support his convictions for endangering a child. Sapp argues that there is no evidence that he placed Brooke or Allison in imminent danger.
A. Standard of Review
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); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). 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. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). 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. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). 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. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49; see Blea, 483 S.W.3d at 33.
To determine whether the State has met its burden under Jackson to prove a defendant's guilt beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial. See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) ("The essential elements of the crime are determined by state law."). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) ("When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements.").
B. The Law on Child Endangerment
A person commits the offense of endangering a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than fifteen years in imminent danger of death, bodily injury, or physical or mental impairment. Tex. Penal Code Ann. § 22.041(c). Although the penal code does not define "imminent," the Texas Court of Criminal Appeals has defined that term to mean "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Garcia v. State, 367 S.W.3d 683, 689 (Tex. Crim. App. 2012) (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)). A measure of the imminence of a danger is the nature of the response the danger should provoke. Hernandez v. State, 531 S.W.3d 359, 364-65 (Tex. App.—Eastland 2017, no pet.). "Once observed by those in a position to act, an imminent danger of death or bodily injury to a child justifies, in fact demands, urgent intervention to remove the child from the danger." Id. at 365 (quoting Clark v. State, No. 12-12-00287- CR, 2013 WL 5966464, at *3 (Tex. App.—Tyler Nov. 6, 2013, pet. ref'd) (mem. op., not designated for publication).
C. Analysis
Here, Sapp challenges only the "imminent" element of his convictions for endangering a child. Sapp contends that when he made the decision to allow Dusti to remain in his home, he did no more than place the children "in a potentially dangerous situation"; he claims that "it could not be said that danger was 'ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near.'" The jury, however, heard testimony that a person who has admitted to or has been caught in the act of sexually abusing or molesting a child is a danger to reoffend the specific victim if allowed continued access. Sapp recognized the imminence of the danger in allowing Dusti to continue living with them as reflected by Sapp's insistence in obtaining a recorded confession from Dusti to use for a future police report, his statement to the police that he did not trust Dusti after the first time she sexually assaulted Brooke, and the evidence that Priscilla had taught Brooke after the first sexual assault to state out loud if anyone touched her inappropriately. A rational factfinder thus could have concluded that Dusti's confession—that she had sexually assaulted three young children, including Brooke who was only six years old—should have provoked Sapp to immediately have Dusti move out of their home in order to remove his three young daughters from the danger Dusti posed to them. See id. at 364-65.
Sapp also argues that his conduct is similar to that of the mother in Elder v. State, 993 S.W.2d 229, 230 (Tex. App.—San Antonio 1999, no pet.), in which the court determined that the danger to Elder's nine-year-old daughter from living with a man on probation for child indecency was not imminent. Elder, however, is not binding on this court, does not align with more recent decisions from the San Antonio Court of Appeals, and is distinguishable because, unlike here, the live-in perpetrator had not previously sexually assaulted Elder's daughter. 993 S.W.2d at 230.
Accordingly, we hold that the evidence presented at trial and the reasonable inferences to be drawn from the evidence—when viewed in the light most favorable to the verdict—are sufficient to have enabled a rational factfinder to have found beyond a reasonable doubt that Sapp intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engaged in conduct that placed Brooke and Allison—children younger than fifteen years—in imminent danger of bodily injury or physical or mental impairment. See Tex. Penal Code Ann. § 22.041(c); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Meza v. State, No. 04-16-00735-CR, 2017 WL 4533704, at *10-11 (Tex. App.—San Antonio Oct. 4, 2017, no pet.) (holding evidence sufficient to support parent's conviction for child endangerment because child, who was unsupervised at night in hotel parking lot, was in imminent danger of being struck or run over); Hernandez, 531 S.W.3d at 366 (holding evidence sufficient to support parent's conviction for child endangerment because living conditions in home, which included insects and feces everywhere, manifested an imminent threat where one child was hospitalized due to infected insect bites); Mayberry v. State, 351 S.W.3d 507, 510-11 (Tex. App.—San Antonio 2011, pet. ref'd) (holding evidence sufficient to support parent's conviction for child endangerment because parent allowed underage, unlicensed son to drive vehicle with more passengers than there were seats). We overrule Sapp's sole issue.
IV. CONCLUSION
Having overruled Sapp's sole issue, we affirm the trial court's judgments.
PER CURIAM PANEL: WALKER, GABRIEL, and KERR, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 19, 2018