Opinion
Nos. 13-10-00427- CR 13-10-00428-CR
Opinion delivered and filed August 31, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b)
On appeal from the 130th District Court of Matagorda County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
MEMORANDUM OPINION
Appellant, Don Stone, was convicted of one count of aggravated sexual assault of a child, one count of indecency with a child by contact, and one count of indecency with a child by exposure. See TEX. PENAL CODE ANN. §§ 21.11(a)(1), (a)(2)(A), 22.021(a)(1)(B)(i) (West Supp. 2010). Stone was sentenced to three life sentences to run concurrently. By four issues, Stone contends that the evidence is legally insufficient to support his conviction and that the convictions for indecency with a child violate the constitutional prohibition against double jeopardy. See U.S. CONST. amend V. We affirm the judgment in appellate cause number 13-10-00427-CR, and we modify the judgment in appellate cause number 13-10-00428-CR and affirm as modified.
In appellate cause number 13-10-00427-CR, Stone was convicted of two counts of indecency with a child; in appellate cause number 13-10-00428-CR, he was convicted of one count of aggravated sexual assault of a child.
I. BACKGROUND
Stone lived in Bay City, Texas with his common law wife, A.P., who had a daughter, T.P. and a granddaughter, T.S. A.P. and Stone sometimes cared for T.S. and T.S.'s brother, "Papa." In February 2009, T.P. went to visit friends in Las Vegas, Nevada, and she left T.S. with Stone and A.P. After returning from Las Vegas, T.P. moved to Houston, Texas sometime at the end of February or beginning of March; however, she left T.S. with Stone and A.P. because T.P. wanted T.S. to finish out the school year in Bay City. T.P. took Papa with her to Houston. T.S. moved to Houston to live wither her mother, T.P., at the end of May. While living in Houston, T.P. caught T.S. viewing a "cartoon" on her computer of people engaged in sexual activity. T.P. testified that she told T.S. to go to bed and that they would discuss the cartoon in the morning. T.P. stated that the next morning, she told T.S. that she was not supposed to watch those types of cartoons on the computer and asked T.S. why she was watching it. T.S. replied that she did not know why. T.P. then told T.S. that the computer would be taken out of T.S.'s room and that next time, she would "whoop" T.S. According to T.P., she gave T.S. a hug, and T.S. started crying. T.P. stated that she asked T.S. why she was crying and that T.S "just looked down at the ground." T.P. testified that she went about her business, and T.S. then told her, "Mama, you know that nasty you caught me watching? . . . [Stone] watches that." T.P. asked T.S. how she knew that Stone had pornographic movies, but T.S. would not answer and "just looked down at the ground." T.P. called her sister, Tasha, and asked her to talk to T.S. T.P. did not hear what Tasha said to T.S. T.P. then had another conversation with T.S.; however, T.P. asked questions "[o]ver a period of days." According to T.P., T.S. told her that Stone "put his hand inside of her. Then she said that he would take his thingy and put it in his hand and put it inside of her." T.P. elaborated that:When it first — when I asked her about when they were staying at [A.P.'s], because when — not [A.P.'s], but [A.P.] was staying at 2314 Avenue A because she moved in pretty much right after I left and went to Houston. And [T.S.] said that that's when she — when he would come, you know and pretty much that that's when he put his hand inside of her. And she said it hurt and that she had to go to the bathroom and she was bleeding. And this was like recent — more recent because this is after [A.P.] moved from the other location by the old [high] school. You know she was staying there before she moved to [Avenue A].T.P. continued:
At that location [Avenue A] she said he just had used his hand pretty much and that that's when he would get her out of bed and lay her on the couch with him to watch the porno.
When they were staying at the other location [by the old high school], that's when she said he actually took his thingy and, you know, put it inside of her. But he didn't — he had it in his hand she said, and he put it inside of her that way.T.P. claimed that T.S. said that Stone threatened that if T.S. ever told anyone what he was doing to T.S., he would hurt T.P. and A.P. T.P. called the police in Houston to report what T.S. had said. However, because the events allegedly occurred in Bay City, T.P. filed a police report there. T.P. then took T.S. to the children's assessment center where she was examined by a doctor. T.S. stated that T.P. told the doctor what Stone had allegedly done to her. On redirect examination, T.P. testified that T.S. said that Stone would watch pornographic movies with T.S. According to T.P., T.S. said "that when [T.P. was living in Houston, T.S.] would be in the bed with [Papa] sleeping, [and Stone] would come get her out of the bed and come lay her on the couch and have her watch the [pornographic] movies with him" in the living room at the Avenue A residence. When asked if T.S. ever mentioned anything about semen, T.P. acknowledged that T.S. did not know that term but had "said the clear stuff that comes out. And [T.S.] said that it tastes salty." T.P. testified that T.S. told her that the "clear stuff" came out of Stone's "thingy when they were at the residence by the old high school." T.S., an eight-year-old child, testified that when she was at A.P.'s house, Stone "was trying to do nasty stuff with [her]. He was trying to do stuff that parents do." T.S. said that Stone would call her to the living room or to A.P.'s room and "[h]e was trying to get his thing and try[ing] to put it in [hers]." T.S. said that Stone attempted to remove her clothes, but that she would not let him do so. According to T.S., Stone asked her to take off her clothes, he would take off his clothes, and she would lie on her back in the bed. T.S. stated that when she was with Stone in A.P.'s room, he would not remove his shirt and only removed his pants. T.S. testified that Stone would then "try to get his private and try and to put it on my back. . . . No, on my — my bottom." T.S. later clarified that Stone "would try to get his private" in her "private." T.S. stated that Stone "tried" to put his private in her private "a lot" in the living room and in A.P.'s bedroom. When asked what she saw, T.S. replied, "Got his private and trying to put it inside of it." T.S. explained that when Stone did this to her, it "[h]urt bad" and that Stone was between her legs. T.S. also stated that Stone "was trying to put [his private] in [her] mouth" and that "that clear stuff" came out of his private. T.S. remembered that on one occasion, "that clear stuff" "squirted in [her] mouth" and she tried to spit it out. T.S. explained that "that clear stuff" tasted "nasty." T.S. testified that she "tried" to tell Stone to stop because she knew that he "was trying to do something that was bad. . . ." The State asked, "[W]hen he would put his private in your private, it would hurt," T.S. replied, "Yes" and stated that she would tell Stone that it hurt but that he would not stop. T.S. testified that Stone also tried to put his hand in her private. T.S. explained that this happened when she was six and then also when she turned seven. She said, when I turned seven, "he's still doing it." When asked if he ever put anything else besides his hand or private into her private, T.S. said, "Yes. His mouth." T.S. explained that Stone was "trying to lick [her private]. . . ." and she would tell him to stop but he would not stop. T.S. testified that sometimes after Stone "was trying" to put his private in her private, her private would hurt and that she saw blood when she went to urinate. The State asked if these "things happened all the time," and T.S. replied, "Yes." T.S. claimed that Stone told her that if she told anyone what he was doing, "[h]e would do something bad to [her]." According to T.S., Stone committed these acts while T.P. was in Las Vegas and also when T.P. was in Houston with Papa. When asked how often it happened when T.P. was in Houston, T.S. replied, "Like, a lot of times." T.S. also claimed that Stone had sexually abused her when he visited her in Houston after she turned eight. Marcella Donaruma, M.D., testified that she examined T.S. after T.S. made an outcry. Dr. Donaruma stated that T.S. had dysuria, or the medical term for "it hurts when I pee" and vaginal discharge. Dr. Donaruma clarified that although T.S. had discharge, she did not have any sexually transmitted diseases. After acquiring T.S.'s past medical history from T.P., T.P. left the examination room, and Dr. Donaruma interviewed T.S. alone. Dr. Donaruma testified that she asked T.S. if she had been touched "in a way that a kid should not be touched on your private places," and T.S. replied, "Someone touched me everywhere in my private places." When Dr. Donaruma asked what places, T.S. said, "My behinney, my stomach, and his name is [Stone]." Dr. Donaruma stated that she asked T.S., "What did he touch your places with," and that T.S. said, "His hand and his thingy." According to Dr. Donaruma, T.S. described Stone's thingy as being "short" and having "a straight line in the middle and the clear stuff would come out." T.S. clarified that the "clear stuff" came out of Stone's "thingy." Dr. Donaruma testified that T.S. said, "He put his thingy in me, and it really hurts" and "Where I pee, there is blood coming out." T.S. told Dr. Donaruma that she saw blood "when she was gonna flush the toilet" and then pointed to her private area and said, "My thingy hurts." Dr. Donaruma stated that she asked T.S. how many times Stone touched her thingy with his thingy and that T.S. responded, "A lot." T.S. allegedly told Dr. Donaruma that Stone asked T.S. to touch him and that after she touched him, she washed her hands. T.S. said that Stone showed her "nasty movies . . . where people are naked." Dr. Donaruma ended the interview at this point. Dr. Donaruma testified that there is a difference in the description of events between a child who has merely viewed pornography and a child who has been sexually abused. Dr. Donaruma stated:
Well, a child who's describing pornography does not typically throw in the additional detail saying I can feel what it feels like and then not only describing that it does hurt but also when it hurts and then describing that there's blood and then not only that there was blood but when she noticed it. That's the type of really rich detail that adds a lot of credence to her disclosure. . . . And when she went to flush the toilet, there was the blood and her thingy was hurting then. So, she's relating that pain to the bleeding to what happened. It's multiple levels of association that make this a very detailed disclosure.Dr. Donaruma testified that she believed that T.S.'s description of the events was credible. Dr. Donaruma explained that "it was clear" what T.S. meant by "his thingy," and Dr. Donaruma interpreted the contact as penile/vaginal contact because T.S. pointed to where her "thingy was." Dr. Donaruma then conducted a physical examination of T.S.'s genital area. Dr. Donaruma testified that T.S.'s hymen "looked great" and that "[e]verything was there that should be there." Dr. Donaruma noted that there was vaginal discharge "pooling" in the vagina and some skin irritation. Dr. Donaruma explained that the irritation probably occurred due to the vaginal discharge; she said, "When you put discharge on skin and then put underpants on top of that, it's very irritating to the skin." Dr. Donaruma stated that the irritation was not indicative of sexual abuse and was more likely related to the discharge and a urinary tract infection. At the end of the examination, Dr. Donaruma informed T.S. that she could not "tell by looking that anything happened" and that meant T.S.'s "body was healthy." Dr. Donaruma, however, did recommend that T.S. receive sexual abuse counseling. Later, Dr. Donaruma explained that she had examined a fifteen-year-old girl who had just had a seven-pound baby, and she could not "tell by looking at her she ever had sex[,] let alone delivered a baby." She further stated that it was not true that one would expect to find medical evidence that a child has been sexually assaulted. When asked if the physical exam led Dr. Donaruma to the conclusion that T.S. had been sexually abused, she stated:
That's a hard question to answer. . . . Well, what we know now that this specialty has existed between 20 and 30 years, depending on when you decide to choose the best paper, is that more than 90 percent of children and in some cases even up to 95 percent of children even before and after puberty have no signs of penetration when they describe what we would perceive as penetrating events. So, what we know is that it's normal to have a normal body even after something has happened to you. More importantly, I think is that the body down there is so rapidly healing. It's like the skin inside your mouth.
On Super Bowl Sunday, if you cut your mouth on a nacho, by Tuesday or Wednesday you're not going to have that cut in your mouth anymore. That's the same skin that's in the vagina. It heals very quickly. So, it's unlikely for us to find injury in both cases. So, we just try to do the best we can to make sure we're not missing that 5 to 10 percent of kids who are going to have anything to see.Dr. Donaruma also opined that she did not believe that ninety to ninety-five percent of children were lying when they claimed sexual abuse. She stated that based upon studies:
The younger children — in general it's very rare for a child to make this up and to continue to make it up to multiple audiences with additional interventions happening after they make these disclosures. Younger children are even less likely to be fabricating things. Above the age of 12 and 13, it's more likely. But what is more likely is for minimization to happen rather than exaggeration. And even then it's still less than 20 percent of cases. The numbers are running away from me. I think it 13 to 15 percent of cases are fabricated or not related in the way to the perpetrator confessing that they happened.On cross-examination, Dr. Donaruma testified that she did not tell T.P. that her physical exam of T.S. "showed sexual abuse." Dr. Donaruma stated that she "would have said I just don't know yet." Dr. Donaruma explained that when she finds trauma in the hymen, "most often that's in acute assault, so a freshly assaulted body. . . . When things are more remote in time, unless there's a piece of tissue missing, it's very rare to find anything." Dr. Donaruma agreed that children who have not been sexually abused can suffer from urinary tract infections and that "having a urinary tract infection or some type of vaginal infection is not conclusive that there has been sexual abuse." According to Dr. Donaruma, "the best evidence that sexual abuse has occurred is a clear and consistent disclosure from the child." On redirect examination, Dr. Donaruma stated that she found the physical exam to be indeterminate of sexual abuse but that T.S. was able to give a clear and consistent description of what happened. When asked why Dr. Donaruma concluded that the examination was indeterminate of sexual abuse, despite T.S.'s clear and consistent description of events, Dr. Donaruma replied:
That's a flaw in the paperwork. So, I often just — right away I just type in stuff that I want to express in situations such as these. If you see our chart, it's boxes. And I check 13 pages of boxes. And, so, what we do is we can check normal exam which means that the body is normal, normal variance, findings caused by medical condition indeterminate, which I checked, and findings of diagnostic of trauma or sexual contact. None of these speak to the content of the interview. It's a box checking flaw we have here.
And, so, what I typically will write, which I didn't have the, I guess, foresight to do here because I didn't know what to make of the discharge was that even with a normal exam, which is what we most often see, I'm not saying I think abuse never happened. I don't describe myself as a lie detector or not. But what I say is that there's nothing acute or chronic on the anatomy of her exam. That does not mean that she is not telling me the truth. And what I would say is that I don't expect to see any residual to the contact she described on her exam based on what she told me, and there's no box to check that explains I'm actually integrating the interview with the physical exam.When asked if T.P. could have had the impression that the exam showed that T.S. had been sexually abused, Dr. Donaruma said:
What I say to parents is her body looks totally normal. That doesn't mean I think — that doesn't mean I don't believe anything happened. But there's nothing left — what I would say is there's nothing left behind from what she's telling, but that's good news for her. So, I don't say, oh, it's normal. This is all made up. I just say we're lucky her body is healthy and normal.
. . . .
So, I'm sure [T.P.] heard that because I do believe [T.S.'s] disclosure.A.P. testified for the defense. A.P. stated that T.P., T.S., and Papa have lived with her at various times. According to A.P., she and Stone lived at 12th Street and then moved to Avenue A, A.P.'s parent's home. A.P. testified that T.P. lived with her approximately for one month before going to Las Vegas and that T.P. went to Las Vegas in January 2009. According to A.P., she and Stone lived at the home on 12th Street when T.P. went to Las Vegas. The home on 12th Street was located "across the street from the old high school." A.P. stated that she did not witness anything that would cause her to believe T.S.'s allegations. A.P. did not believe the allegations against Stone because she had been with Stone for ten years and "he's never had a charge like this on him before." However, when asked if she thought T.S. was lying, A.P. stated, "I don't believe — well, I'm going to put it this way: Some of it I don't believe — some of it I don't believe she's lying about, and some of it I do believe she's lying about." When asked to clarify, A.P. replied:
Well, my granddaughter's, she's a very good little girl; and I know I've spoiled 'em both a lot. I have. Because everything they usually ask for I try to get it for 'em, for both of 'em. But — and I've never ever see [Stone] mess with her, with my granddaughter, never. He spent time with 'em, play with 'em. They'll come in and say, [Stone], come in and play with us. And he'll go in there and play with them.A.P. testified that she did not have any pornography in her home and that she did not allow Stone to bring any into the home. A.P. did not witness Stone watching pornographic movies alone or with the children present and she did not notice Stone missing from the bed at night. According to A.P., Stone treated the grandchildren "very well," and he "would take time, you know, make sure that they had food to eat or cook for them." On cross-examination, the State asked, "Ma'am, so, you didn't really answer [defense counsel's] question when you said some of it you believe and some of it you don't believe. So, I'm interested in what it is about the allegations you believe?" A.P. responded that she believed T.S. "to a certain extent on some things she told" A.P. The State asked A.P. to repeat those things and A.P. replied, "Well, I'm just — I'm going to tell it like it is because, okay, at first when [T.S.] — [T.P.] told me about what happened — because she called me and when she told me about what had happened, I did believe [T.S.]." A.P. then stated, "But everything has been changing. You know, things — the story's been changed three times." A.P. refused to repeat the "things" that T.S. said Stone had done to her because it was "very bad." A.P. acknowledged that she believed T.S. "at one point." A.P. testified that when the police were unable to find Stone in order to interview him regarding T.S.'s allegations, Stone was in California. A.P. stated that a police detective yelled at her because he claimed she would not disclose Stone's location, but A.P. insisted that she did tell the detective that Stone was in California. However, A.P. said that she did not have any information about Stone's location in California; and therefore, she was unable to provide that information to the detective. Instead, A.P. told the detective that Stone would call him. Later, A.P. stated that she called Stone and told him that he needed to come home due to the investigation. When asked if she gave the detective Stone's phone number, A.P. replied, "No, because I didn't have the number because he called me." After hearing the evidence, the jury found Stone guilty of all three counts and sentenced him to three life sentences to run concurrently. This appeal followed.