                                  NO. 07-10-00469-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                 NOVEMBER 16, 2011


                      SHAWN SHAFFER BAXTER, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 31ST DISTRICT COURT OF ROBERTS COUNTY;

                    NO. 715; HONORABLE BRYAN POFF, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Over his plea of not guilty, a jury found appellant Shawn Shaffer Baxter guilty of

aggravated sexual assault of a child and assessed punishment at life imprisonment. In

his sole issue, appellant contends the evidence was insufficient to support his conviction

because the State failed to prove beyond a reasonable doubt the complainant was not

his spouse. We affirm.
                                      Background

      Appellant was charged by a two-count indictment with aggravated sexual assault

of a child.1 The indictment charged him with intentionally or knowingly causing the

penetration of the sexual organ of the complainant, a child who was then and there

younger than 14 years of age and not the spouse of the defendant, by the defendant’s

tongue and finger. As to the count alleging penetration by appellant’s tongue, the trial

court granted appellant’s motion for directed verdict at the close of the State’s case. He

was convicted of the other count.

      The complainant was six years old at the time of the offense and eight at trial.

She testified appellant babysat her while her mother was at work. She told the jury

appellant touched her “private spots.” She also said he touched her in “bad spots,”

which she agreed were between her legs in front.         The State also presented the

testimony of the complainant’s mother, a sexual assault nurse examiner, and an expert

in sexual abuse of children.

                                         Analysis

      The events leading to appellant’s conviction occurred in October 2008. At that

time, the Penal Code defined a “child” for purposes of sexual assault cases as a person

younger than 17 years of age and not the spouse of the actor. Tex. Penal Code Ann. §

22.011(c)(1) (West 2008) (current version at Tex. Penal Code Ann. § 22.011(c)(1)


      1
        Tex. Penal Code Ann. § 22.021 (West 2010). This is a first degree felony
punishable by imprisonment for life or for any term of not more than 99 years or less
than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (West
2010).

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(West 2011)). The definition was amended, effective September 1, 2009, to delete the

“not the spouse” aspect, but the prior version applies to offenses committed before that

date. Id.

       In his sole issue on appeal, appellant contends the State failed to prove that the

complainant was not his spouse. See Strahan v. State, 306 S.W.3d 342, 349

(Tex.App.—Fort Worth 2010, pet. ref’d); Martin v. State, 819 S.W.2d 552, 556

(Tex.App.—San Antonio 1991, no pet.) (both addressing similar contention). We find

the issue meritless.

       Evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational fact finder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App. 2010),

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979));

Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). The standard recognizes

the duty of the fact finder “to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Clayton v. State,

235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (quoting Jackson, 443 U.S. at 319). On

review, an appellate court determines whether the necessary inferences are reasonable

based on the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict. Clayton, 235 S.W.3d at 778 (citing Hooper v. State,

214 S.W.3d 9, 13 (Tex.Crim.App. 2007)). In viewing the record, direct and

circumstantial evidence are treated equally; circumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor, and circumstantial evidence alone
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can be sufficient to establish guilt. Id. (citing Hooper, 214 S.W.3d at 13). An appellate

court presumes that the fact finder resolved any conflicting inferences in favor of the

verdict and defers to that resolution. See Jackson, 443 U.S. at 326; Clayton, 235

S.W.3d at 778.

      In the sexual assault statute, “spouse” means a person legally married to

another. Tex. Penal Code Ann. § 22.011(c)(2) (West 2011). There is no evidence

directly showing whether the complainant was, or was not, legally married to appellant.

But this is not an instance in which the jury was required to choose between conflicting

inferences properly drawn from the evidence. There is no evidence from which the jury

reasonably could have drawn an inference the six-year-old complainant was appellant’s

wife. See Strahan, 306 S.W.3d at 349 (on similar facts, finding evidence supported no

inference other than that required for guilt). And rather clearly there are basic facts

shown from which the jury reasonably could have inferred the ultimate fact that the

complainant was not appellant’s wife.

      The basic facts begin with the age of the complainant, six years at the time of the

offense. Her very young age allowed the jury to infer she was not legally married to

appellant. Chavez v. State, 508 S.W.2d 384, 386-87 (Tex.Crim.App. 1974); Rivera-

Reyes v. State, 252 S.W.3d 781, 787-88 (Tex.App.—Houston [14th Dist.] 2008, no pet.);

Vann v. State, No. 05-10-0451-CR, 2011 Tex. App. Lexis 3417, *8 n.3 (Tex.App.—

Dallas May 6, 2011, no pet.) (mem. op., not designated for publication).

      The complainant’s mother also testified she hired appellant to babysit her

children, including the complainant, and that she was “livid” when she learned of his


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sexual contact with her daughter. The evidence that appellant’s status was that of a

hired babysitter, a status inconsistent with a marital relationship, also supports the

conclusion he was not married to the complainant. See, e.g., Martin, 819 S.W.2d at 556

(testimony that defendant babysat complainant and her siblings, coupled with testimony

of the child’s age, sufficient to establish complainant was not the spouse of defendant).

The complainant’s mother’s reaction further supports the conclusion appellant was not

married to the complainant.

      Finally, the complainant testified appellant was her mother’s boyfriend. Although

other evidence shows the complainant was mistaken, and appellant was not her

mother’s boyfriend, the jury reasonably could have seen the complainant’s belief as

inconsistent with a spousal relationship between the complainant and appellant.

      This evidence, though circumstantial, is sufficient to permit a rational jury to

conclude, beyond a reasonable doubt, that the complainant was not appellant’s spouse.

Accordingly, we overrule appellant’s issue and affirm the trial court’s judgment.




                                                              James T. Campbell
                                                                   Justice

Do not publish.




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