                                IN THE
                        TENTH COURT OF APPEALS

                                No. 10-11-00410-CR

MICHAEL DAVID SPICER,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                            From the 40th District Court
                                Ellis County, Texas
                              Trial Court No. 32649CR


                            MEMORANDUM OPINION


      Michael David Spicer was charged with two counts of aggravated sexual assault

of a child. The jury convicted Spicer on both counts and assessed his punishment at 30

years confinement for each count. The trial court ordered the sentences to be served

consecutively. We affirm.
                                 Sufficiency of the Evidence

        In the sole issue on appeal, Spicer contends that the evidence is insufficient to

support his convictions. The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly 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. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, 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 can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

Spicer v. State                                                                             Page 2
can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

         M.S. is the seven year-old biological daughter of Spicer. M.S. lived with her

younger sister, Spicer, and Spicer’s girlfriend, Michelle Kiser. M.S. referred to Kiser as

her mother. Child Protective Services received a call that M.S. was at risk for sexual

abuse.     Kiser took M.S. to the Gingerbread House (the Ellis County Children’s

Advocacy Center) where she was interviewed by Teresa Evans.

         During the interview, M.S. told Evans that no one had touched her in her private

areas and that she had not been asked to look at another person’s private parts. Evans

concluded the interview, and M.S. left with Kiser. Kiser reinforced the meaning of

private parts to M.S. and asked if M.S. needed to tell her anything. M.S. told Kiser that

she was scared and that she did not tell Evans the whole truth. Kiser took her back to

The Gingerbread House, and Evans conducted a second interview that same day.

         M.S. told Evans that she had forgotten to tell her something and that she was

scared to tell her. M.S. said that Spicer would put his “private” in her mouth and that

he made her hold his “private” until he was done. M.S. explained that when Spicer was

done “stuff would come out of it, and it looked like spit.” M.S. further told Evans that

Spicer put his “private” in her “butt” and that it hurt. M.S. said that Spicer would

watch private shows on his computer and that she would watch cartoons when he did

these things to her.

         M.S. testified at trial that Spicer took off her pants and put his “private up [her]

butt” and that it hurt. M.S. said that Spicer would get a rag with warm water on it and

Spicer v. State                                                                        Page 3
“then he - - he would wipe me and then it would be done.” M.S. stated that she

watched cartoons and Spicer watched a “show on how to do it” on the computer while

doing these things to her. M.S. further testified that Spicer put his “private” in her

mouth. M.S. said that she had to hold Spicer’s “private” with her hands while he put it

in her mouth and that “some white stuff that looks kind of like spit” came out of his

private. M.S. stated that these things happened while her mommy (Kiser) was at work.

        Section 22.021 of the Penal Code provides that:

                  (a) A person commits an offense:
                         (1) if the person:
                         …

                     (B) intentionally or knowingly:
                     (i) causes the penetration of the anus or sexual organ of a
        child by any means;
                     (ii) causes the penetration of the mouth of a child by the
        sexual organ of the actor;
                     (iii) causes the sexual organ of a child to contact or penetrate
        the mouth, anus, or sexual organ of another person, including the actor;
                     (iv) causes the anus of a child to contact the mouth, anus, or
        sexual organ of another person, including the actor; or
                     (v) causes the mouth of a child to contact the anus or sexual
        organ of another person, including the actor; and

                  (2) if:
                            …

                            (B) the victim is younger than 14 years of age;

TEX. PENAL CODE ANN. § 22.021 (a) (West Supp. 2011).

        Spicer specifically argues that Kiser manipulated M.S. into making an outcry.

After the first interview, Evans instructed Kiser not to discuss the interview with M.S.

Kiser testified that she reinforced to M.S. what “private area” means and that she asked


Spicer v. State                                                                         Page 4
M.S. if she wanted to talk about anything. Spicer contends that because M.S. initially

denied that anyone had touched her privates when interviewed by Evans, but then

made the outcry after talking with Kiser, the evidence is insufficient to support his

convictions for aggravated sexual assault.

        Evans testified that she did not feel that Kiser had told M.S. to make the outcry

on the second interview. During the second interview, approximately one hour after

the first interview, M.S. told Evans detailed information about how Spicer put his

private in her mouth and “butt.” M.S. testified at trial that Spicer put his “private” in

both her mouth and her “butt.” A rational fact finder could have found the essential

elements of the aggravated sexual assault beyond a reasonable doubt. We overrule the

sole issue.

                                       Conclusion

        We affirm the judgment of the trial court.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 16, 2012
Do not publish
[CRPM]




Spicer v. State                                                                    Page 5
Spicer v. State   Page 6
