                                 NO. 12-12-00021-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

HOWARD MARK HUFFMAN,                              §             APPEAL FROM THE 3RD
APPELLANT

V.                                                §             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §              ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Appellant, Howard Mark Huffman, appeals his convictions for aggravated kidnapping and
aggravated sexual assault. In two issues, he challenges the sufficiency of the evidence to support
his convictions. We affirm.


                                          BACKGROUND
       Appellant was indicted for aggravated kidnapping and aggravated sexual assault. The
indictment also included an engaging in organized criminal activity allegation.         Appellant
pleaded not guilty, and the matter proceeded to a jury trial.
       The victim, “Penny Jones,” (a pseudonym) testified that she was “raped” by three men–
Dustin Huffman, who is Appellant’s nephew; Victor Wade Davis; and James Henderson. All
three men were named in the indictment. ”Jones” testified in detail about the sexual assaults and
also about the events that occurred before and after the assaults. An emergency room doctor and
a SANE (sexual assault examiner nurse) nurse testified that “Jones’s” injuries were consistent with
her description of the sexual assaults.
       Ultimately, the State abandoned the engaging in organized criminal activity allegation, and
the jury found Appellant guilty of aggravated kidnapping and aggravated sexual assault under the
law of parties. The jury then sentenced Appellant to imprisonment for ninety-nine years and a ten
thousand dollar fine on each count. This appeal followed.


                                   SUFFICIENCY OF THE EVIDENCE
         In his first issue, Appellant argues that the evidence is factually insufficient to support the
jury’s guilty verdict. The court of criminal appeals has held that the Jackson v. Virginia standard
is the only standard a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the state is required to prove beyond a
reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Accordingly,
we will apply only the Jackson standard in addressing this issue. See Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
Standard of Review and Applicable Law
          The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2786-87;
see also Brooks, 323 S.W.3d at 895. Evidence is not legally sufficient if, when viewing the
evidence in a light most favorable to the verdict, no rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; see also Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Under this
standard, a reviewing court does not sit as a thirteenth juror and may not substitute its judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Brooks, 323
S.W.3d at 899; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a
reviewing court defers to the fact finder’s resolution of conflicting evidence unless that resolution
is not rational in light of the burden of proof. See Brooks, 323 S.W.3d at 899-900. The duty of a
reviewing court is to ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
         The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would be one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the defendant



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was tried.” Id.
       Aggravated sexual assault, as applicable here, is the intentional penetration of the sexual
organ of a person without that person’s consent by the sexual organ of the actor if the person (1) by
acts or words places the victim in fear that death will be inflicted on any person or (2) acts in
concert with another who engages in the sexual assault directed toward the same victim and
occurring during the course of the same criminal episode.                TEX. PENAL CODE ANN.
§ 22.021(a)(1)(A)(i), (2)(A)(ii), (iii), (v) (West Supp. 2013).     Appellant challenges only the
sufficiency of the evidence to establish penetration by all three men named in the indictment.
Analysis
       Based upon our review of the record, we conclude the State introduced evidence of
penetration by the three men. “Jones” identified Dustin Huffman, Victor Wade Davis, and James
Henderson as the men who “raped” her. The term “rape” has been defined as “nonconsensual
sexual intercourse accomplished by a male with a female. . . .” Boston v. State, 642 S.W.2d 799,
801 (Tex. Crim. App. 1982). “Jones” also testified that the three men wore condoms during the
sexual assaults. Additionally, the SANE nurse testified that “Jones” told her three men had
penetrated her. “Jones” also told her the men wore condoms and had sex with her. The nurse
stated further that the injuries to “Jones’s” vaginal area were consistent with “Jones’s” description
of the sexual assaults.
       Viewed in the light most favorable to the verdict, a rational jury could have concluded from
this evidence, beyond a reasonable doubt, that “Jones” was penetrated by Dustin Huffman, Victor
Wade Davis, and James Henderson. Therefore, the evidence is sufficient to support the element
of penetration. Appellant’s first issue is overruled.


                                      THE LAW OF PARTIES
       In his second issue, Appellant contends that the evidence introduced at trial is insufficient
to support the jury’s finding that he was guilty under the law of parties.
Standard of Review and Applicable Law
       As we stated in our discussion of Appellant’s first issue, we apply the Jackson v. Virginia
legal sufficiency standard when reviewing the sufficiency of the evidence to support a criminal
conviction. See Brooks, 323 S.W.3d at 895; see also Jackson, 443 U.S. at 315-16, 99 S. Ct. at
2786-87.



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        A person is criminally responsible for an offense committed by the conduct of another if
“acting with intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense. . . .” TEX. PENAL CODE
ANN. § 7.02 (a)(2) (West 2011); see Leza v. State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011)
(Section 7.02, subsections (a) and (b) describe “alternate manners by which an accused may be
held accountable for the conduct of another who has committed the constituent elements of a
criminal offense. . . .”).
Analysis
        Appellant contends that neither the mere presence at the scene of a crime or the mere
knowledge that an offense is about to be committed by others will make him a party to the offense.
While we agree with this statement of the law, the record in this case supports the jury’s findings
that Appellant’s role was not so limited.
        The aggravated kidnapping and aggravated sexual assaults occurred on Appellant’s
property, which is located in rural Anderson County. The evidence showed that Appellant
manufactured and sold methamphetamine on the property. Among the various outbuildings and
sheds on the property was a decrepit camper, which “Jones” described as the “driving kind.” It is
in this camper that the sexual assaults occurred.
        “Jones” testified that she went to Appellant’s property to recover some money that had
been taken from her child support debit card without her permission by Appellant’s nephew,
Dustin Huffman. She testified that, after she confronted Dustin and repeatedly and loudly
demanded the return of her money, Appellant came out of his house to find out what was going on.
When “Jones” told Appellant what had happened, he told Dustin to return “Jones’s” money to her
and then went back inside his house.
        A short time later, “Jones” knocked on the door of Appellant’s house. Her boyfriend,
“Wes,” opened the door slightly, but when she asked to come inside, he told her Appellant said she
was not allowed inside. She stayed outside for several hours because the location was remote and
she had no way to leave. She began to suspect that she going to “get hurt” because everything
was “too secretive” and the place was unusually quiet.
        Sometime after midnight, Wes came outside, grabbed her “by the hair” and started
dragging her toward the camper. Although she repeatedly “punched” him in the back as he
dragged her, he did not release her and forced her to enter the camper. After they were inside, she



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and Wes argued, and she learned that he believed she was “a cop.”             Their argument was
interrupted by the ringing of a cell phone. She could tell by the cell phone’s distinctive ring that
the phone belonged to Appellant. She could not hear Appellant’s side of the conversation, but she
heard Wes say, “[Y]es, I have her in here.” She then saw “headlights” coming down the sand
drive to the camper.
       The camper door was open, and “Jones” started to walk out.              Dustin immediately
appeared in the doorway, told her she was not going anywhere, and pushed her backwards into the
camper. She soon saw flashlights, and Appellant, Victor Wade Davis, and James Henderson
entered the camper. Appellant asked “Jones,” “Why are you doing this [?] [A]ll I’ve ever done
is try to help you.” She interpreted this as meaning that he thought she had turned them in to law
enforcement. Appellant then stepped out of the camper, and the door was shut. She believed he
stayed outside because she did not see his flashlight moving away from the camper. She could
not leave because there was not room for her to move away from the men.
       “Jones” testified further that she was then “raped.” She described in detail the methodical,
violent manner in the sexual assaults were carried out while she screamed and struggled to get
away. She identified the perpetrators as Dustin, Victor Wade Davis, and James Henderson.
After the sexual assaults, Wes wanted to speak to her before the next act, which “Jones” thought
would be her murder. “Jones” and Wes went to the camper door, which was firmly closed. Wes
then said, “[A]ppellant], it’s me, Wes, open the door.” The door then opened, and Appellant was
standing outside. “Jones” stated that anyone standing outside the camper could have heard her
screams.
       Viewed in the light most favorable to the jury’s verdicts, a rational fact finder could have
concluded from this evidence, beyond a reasonable doubt, that (1) Appellant directed the
aggravated kidnapping of “Jones,” (2) he aided the aggravated kidnapping by providing the place
where she was confined and keeping the camper door shut so that she could not escape, (4) he
encouraged or aided the aggravated sexual assaults by providing Dustin, Victor Wade Davis, and
James Henderson access to the camper, and by acting as a lookout while the sexual assaults were
occurring. Therefore, the evidence is sufficient to support the jury’s verdicts that Appellant was
guilty of aggravated kidnapping and aggravated sexual assault under the law of parties.
Appellant’s second issue is overruled.




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                                                    DISPOSITION
         Having overruled Appellant’s two issues, we affirm the judgment of the trial court.

                                                                  SAM GRIFFITH
                                                                     Justice


Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 20, 2013


                                          NO. 12-12-00021-CR


                                  HOWARD MARK HUFFMAN,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                              Appeal from the 3rd District Court
                         of Anderson County, Texas (Tr.Ct.No. 30043)
                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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