      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00639-CR



                               Paul Michael Shumaker, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2012-311, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Paul Michael Shumaker was indicted for two counts of aggravated sexual assault

of an adult man with significant mental disabilities, J.P. See Tex. Penal Code § 22.021(a) (setting

out elements of offense of aggravated assault of disabled person), (e) (explaining that offense is

first-degree felony). The first count alleged that Shumaker intentionally or knowingly caused his

sexual organ to penetrate J.P.’s mouth without J.P.’s consent, and the second count alleged that

Shumaker intentionally or knowingly caused J.P.’s sexual organ to penetrate Shumaker’s mouth

without J.P.’s consent. Both counts were alleged to have occurred on the same day. On the night

of the alleged offenses, J.P. spent the night at Shumaker’s home, and on the following day, Shumaker

drove J.P. to the house of his brother, D.P. At the end of the trial, the jury found Shumaker guilty of

both counts, assessed his punishment at five years’ imprisonment for each count, and recommended

that Shumaker be placed on community supervision. In accordance with the jury’s recommendation,
the district court entered its judgment, sentenced Shumaker to five years’ imprisonment for each

count, suspended the sentences, and placed Shumaker on community supervision for ten years.

See id. § 12.32 (listing permissible punishment range for first-degree felony). On appeal, Shumaker

asserts that the evidence is legally insufficient “because the State failed to prove [his] identity as the

perpetrator of the offense[s].” We will affirm the district court’s judgments of conviction.


                                            DISCUSSION


Sufficiency of the Evidence

                In his sole issue on appeal, Shumaker contends that the evidence is legally insufficient

to support his two convictions. When presenting this argument, Shumaker limits his sufficiency

challenge to the evidence establishing his identity as the perpetrator and insists that the State failed

to prove that he was the perpetrator in each offense. As support for this argument, Shumaker asserts

that during the trial, J.P. discussed someone named Paul when testifying about the offenses but that

evidence was introduced establishing that Shumaker went by the name “Buddy” rather than by

his first name Paul. Moreover, Shumaker contends that “[n]o one ever attempted to tie the ‘Paul’

discussed by [J.P.] with the Appellant referred to as ‘Buddy’ by everyone including [J.P.]” Specifically,

Shumaker asserts that J.P. was never asked if Buddy and Paul were the same person and that no

evidence was introduced showing that Shumaker was the only Paul that J.P. knew. Moreover,

Shumaker notes that when J.P. was called to the stand, he was unable to identify Shumaker in court

as the person who committed the alleged offenses. In addition, Shumaker points out that even

though the evidence presented at trial established that J.P. went to Shumaker’s home on more than



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one occasion and spent the night there on New Year’s Eve, that Shumaker and J.P. watched

television at Shumaker’s home, and that Shumaker had dogs, J.P. provided testimony that

contradicted that evidence when describing his interactions with “Paul,” who J.P. asserted committed

the offenses. Specifically, Shumaker notes that J.P. could not describe what “‘Paul’s’ house looked

like or where it was located,” denied watching “movies at ‘Paul’s’ house, denied playing on his

computer at ‘Paul’s’ house, and further denied that ‘Paul’ had any pets.” In light of the above,

Shumaker asserts that there is no evidence establishing that Shumaker is the person that J.P. was

referring to when discussing Paul and that “[t]he only reasonable inference that can be made is that

‘Paul’ is not the same person as [Shumaker] and the State has failed to prove an essential element

of the offense[s].”

                Under the legal-sufficiency standard, appellate courts view the evidence in the light

most favorable to the verdict and 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

(1979). When performing this review, an appellate court must bear in mind that it is the factfinder’s

duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable inferences

“from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc. art. 36.13 (explaining that

“jury is the exclusive judge of the facts”). Moreover, appellate courts must “determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,

16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences

were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d 772,



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778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that “direct and circumstantial

evidence are treated equally” and that “[c]ircumstantial evidence is as probative as direct evidence

in establishing the guilt of an actor” and “can be sufficient” on its own “to establish guilt.” Kiffe v.

State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

                The identity of a perpetrator may be proven by direct evidence, circumstantial

evidence, or inferences. Robertson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet.

ref’d); see also Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (setting out types of

evidence that may be used to establish identity and noting that although victim misidentified juror

as perpetrator, circumstantial evidence pointed to defendant as perpetrator, including testimony from

officer who arrested defendant at scene). Proof of identity through circumstantial evidence is subject

to the same standard as is proof by direct evidence, and the sufficiency of the evidence identifying

the defendant as the offender is determined from the cumulative effect of all the evidence. Hudson

v. State, No. 03-04-00733-CR, 2006 Tex. App. LEXIS 7280, at *19-20 (Tex. App.—Austin

Aug. 18, 2006, no pet.) (mem. op., not designated for publication). Moreover, “[t]he absence of an

in-court identification is merely a factor for the jury to consider in assessing the weight and credibility

of the witnesses’ testimony,” Jones v. State, No. 10-08-00261-CR, 2009 Tex. App. LEXIS 8923,

at *3 (Tex. App.—Waco Nov. 18, 2009, pet. denied) (mem. op., not designated for publication), see

Hudson, 2006 Tex. App. LEXIS 7280, at *8, and “[e]ven a total failure . . . to identify the defendant

on one occasion goes only to the weight of that person’s testimony, not its admissibility,” Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).




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                As pointed out by Shumaker, the record shows that J.P. had difficulty identifying

Shumaker. In his testimony, J.P. stated that he remembered a man named “Paul,” but when J.P. was

asked if he saw Paul in the courtroom, he answered, “No, not yet. Not yet.” Next, when the State

directed J.P. to look in a particular portion of the courtroom and asked J.P. if he saw Paul, J.P. said,

“No, not really. Oh, Paul? I don’t see Paul.” In addition, as emphasized by Shumaker, J.P. was unable

to describe what Paul’s house looked like and stated that he did not remember if Paul had any pets.

                However, later in his testimony, J.P. pointed at someone in the courtroom and

identified that person as Paul, and nothing in the record indicates that anyone commented that the

person that J.P. pointed at was not Shumaker.1 See Kalka v. State, No. 07-02-00462-CR, 2003 Tex.

App. LEXIS 8947, at *8-9 (Tex. App.—Amarillo Oct. 20, 2003, pet. ref’d) (not designated for

publication) (disagreeing with assertion that inconsistencies in testimony from victim with mental

disability rendered testimony untrustworthy and noting that inconsistencies simply affect “the

weight a juror may assign to their testimony”); cf. Hiatt v. State, 319 S.W.3d 115, 121 (Tex.

App.—San Antonio 2010, pet. ref’d) (explaining that “[c]hild victims of sexual crimes are afforded

great latitude when testifying and they are not expected to testify with the same clarity and ability

as is expected of a mature and capable adult”). In fact, when Shumaker later testified and was asked,


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         In his brief, Shumaker notes that J.P. stated that Paul was on the left side of the room and
then asserts that this is inconsistent with the testimony of Officer Ben Haynes, who testified that
from his perspective Shumaker was sitting on the right side of the room. As discussed above,
Shumaker did not object or assert that J.P. had identified someone other than himself during J.P.’s
testimony and did not dispute the State’s characterization that J.P. had pointed at and identified
him when the State was cross-examining him. On the contrary, Shumaker agreed that J.P. had
recognized him. Moreover, it is not entirely clear that these statements are in fact inconsistent
because J.P.’s identification did not contain any indication that J.P. was referencing the direction
from his perspective.

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“When [J.P.] raised his finger in your direction and singled you out as Paul, that seemed rather

credible, did it not,” Shumaker did not dispute that J.P. pointed in his direction and instead answered

that J.P. did not “know [him] as Paul. [J.P.] knows [him] as Buddy.” Further, Shumaker agreed that

when J.P. was testifying, J.P. recognized him as Paul. Cf. Rohlfing v. State, 612 S.W.2d 598, 600-01

(Tex. Crim. App. 1981) (overruling sufficiency challenge that defendant was not properly identified

in court, in part, because defendant failed to object to identification procedure used in court).

               When testifying about “Paul,” J.P. explained that he met Paul at a gas station and that

Paul asked if he needed help. In addition, J.P. answered, “Uh-huh,” when asked if he met Paul on

New Year’s Eve. Furthermore, J.P. testified regarding what he was wearing when he met Paul and

stated that the police took those items, including his underwear, from his house when they talked

with him about the offenses. Moreover, during his testimony, J.P. mentioned various sexual acts that

occurred between him and Paul, including statements that Paul’s mouth touched his penis and that

he touched Paul’s penis with his mouth. See Tex. Code Crim. Proc. art. 38.07 (explaining that

sexual-assault conviction is supportable by uncorroborated testimony of victim of sexual offense if

victim informed any person about alleged offense within one year after date that offense occurred

and excusing time restraint for victims with “mental disease, defect, or injury”); see also Jensen v.

State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (explaining that

testimony of victim alone is sufficient to support conviction in sexual-assault case).

               In addition to J.P.’s testimony regarding who committed the alleged offenses, other

evidence was introduced establishing that J.P. and Shumaker were together on the night of the

alleged offenses through the testimony of Shumaker, D.P., and Deputy John Hall. Specifically,



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Shumaker testified that he met J.P. for the first time on New Year’s Eve at a gas station when J.P.

was opening the gas-station doors for customers, that he left the gas station to go to a party, that he

saw J.P. was still at the gas station hours later, that he offered to drive J.P. to D.P.’s house where J.P.

was living, that D.P. was not home, that he agreed to let J.P. stay at his house for the evening, and

that he told J.P. that J.P. would have to sleep in his bed because his dogs had ruined the carpet. In

his testimony, Shumaker explained that he and J.P. were fully clothed when they were in bed, denied

initiating any sexual conduct with J.P., and stated that he simply wanted to be J.P.’s friend, but he

related that when he woke up early in the morning, he discovered J.P.’s hand on his crotch and

believed that J.P. had been kissing him while he was asleep. Schumaker recalled that he told J.P.

to stop and that they went back to sleep. In addition, Shumaker explained that he tried to take J.P.

home the next morning, that there was no answer at D.P.’s house, that he took J.P. to work with him,

that he drove J.P. to D.P.’s house later that afternoon, and that he talked with D.P. about J.P. when

they arrived at the home. Furthermore, Shumaker explained that over the next few days, he continued

to hang out with J.P. and brought J.P. back to his house to watch movies and play on the computer.

                In addition to Shumaker’s testimony, a recording of a conversation that Shumaker

had with the police was played for the jury. On the recording, Shumaker admitted that he took J.P.

to his home and that he and J.P. slept in the same bed on New Year’s Eve. Further, Shumaker

related that J.P. tried to initiate some sexual activity but that he told J.P. that “we don’t know each

other that well.” Moreover, on the recording, Shumaker described J.P. as an attractive man.

                Before Shumaker testified, D.P. was called to the stand to discuss his interactions

with Shumaker. In his testimony, D.P. explained that he first met Shumaker on New Year’s Day



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when Shumaker drove J.P. home and specifically identified Shumaker in court as the man who

had driven J.P. home. Moreover, D.P. testified that after J.P. returned home from hanging out with

Shumaker on a subsequent occasion, he noticed that J.P. was performing an internet search

concerning sexual topics, that he initiated a conversation with J.P. about his internet search, and that

as a result of that conversation, he called the police. In addition, he explained that he asked the

police to issue a criminal trespass warning against Shumaker.

                After D.P. finished his testimony, Officer Hall was called to the stand to describe his

investigation of the alleged offenses and to discuss a conversation that he had with Shumaker about

the night of the alleged offenses, and a recording of that conversation was played for the jury. On

the recording, J.P. explained that a man kissed him on New Year’s Eve on the man’s bed and

discussed other sexual contact that occurred, and Officer Hall referred to the man as Paul. In his

testimony, Officer Hall explained that during his investigation, he collected the clothes that J.P. wore

when he was with Shumaker, and later a DNA technician for the police, Allison Heard, testified that

she performed DNA testing on the items that Officer Hall collected and that the testing performed

on J.P.’s underwear revealed skin cells that were consistent with a mixture of J.P.’s and Shumaker’s

DNA profiles. In addition, although Heard explained that there are several ways in which skin cells

may get transferred to an object without someone actually touching the object, including transfers

from other objects, she questioned the ease with which skin cells might be transferred to clothing

that is underneath additional layers of clothing but admitted that she could not rule that out without

doing additional testing.




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                In light of our standard of review; given the evidence summarized above, including

the evidence establishing that J.P. was with Shumaker at the time of the alleged offenses and

spent the night at Shumaker’s home on the night of the alleged offenses, the consistency between

Shumaker’s testimony regarding how he and J.P. met and J.P.’s testimony addressing how he and

“Paul” met, the evidence establishing that Shumaker brought J.P. home on the morning after the

offenses, the evidence establishing the occurrence of the offenses in question, and the portion of

J.P.’s testimony in which he identified “Paul” in the courtroom; and in light of the reasonable

inferences that the jury was free to make from that evidence, we believe that the evidence was legally

sufficient to establish Shumaker’s identity as the offender at issue. See Clark v. State, 47 S.W.3d 211,

214-15 (Tex. App.—Beaumont 2001, no pet.) (overruling sufficiency challenge based on premise

that victim was unable to identify him as man who had assaulted her and determining that even

if no witness could identify defendant as perpetrator, verdict was not improper if other evidence

indicated that he was perpetrator); see also Kalka, 2003 Tex. App. LEXIS 8947, at *10 (determining

that fact that victim “may have had the mind of a six year old, that her testimony may have been

inconsistent at times, and that she could not say the word ‘confused,’ does not strip the verdict of . . .

legally . . . sufficient evidentiary support given the entirety of the evidence and the jury’s right to

weigh it and assess the credibility of those testifying”). Accordingly, we overrule Shumaker’s issue

on appeal.


                                           CONCLUSION

                Having overruled Shumaker’s issue on appeal, we affirm the district court’s

judgments of conviction.

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                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: August 20, 2015

Do Not Publish




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