Opinion filed November 30, 2017




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-16-00266-CR
                                    __________

                  MICHAEL ALLEN STITES, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 42nd District Court
                              Taylor County, Texas
                          Trial Court Cause No. 26012A


                      MEMORANDUM OPINION
      The jury found Michael Allen Stites guilty of continuous sexual abuse of a
child.1 The trial court assessed punishment and sentenced Appellant to confinement
for twenty-five years. On appeal, Appellant challenges the sufficiency of the
evidence and asserts that the trial court should have provided the jury with an




      1
       See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2017).
instruction on the lesser included offenses of aggravated sexual assault of a child2
and indecency with a child by contact.3 We affirm.
                                      I. The Charged Offense
      The grand jury returned an indictment against Appellant for continuous sexual
abuse of a child, which the State later amended. In the amended indictment, the
State alleged that Appellant had committed continuous sexual abuse of a child when
he committed aggravated sexual assault of a child against L.D. and B.S., children
younger than fourteen years of age, by causing L.D.’s mouth and B.S.’s mouth to
contact his male sexual organ. The State also alleged that Appellant committed the
act of indecency by contact with L.D. when he caused her hand to touch his male
sexual organ. The State alleged that these acts occurred during a period of more than
thirty days, from January 1, 2008, through March 1, 2013, and that Appellant was
more than seventeen years of age at the time.
      A person commits the offense of continuous sexual abuse of a child if:
             (1) during a period that is 30 or more days in duration, the person
      commits two or more acts of sexual abuse, regardless of whether the
      acts of sexual abuse are committed against one or more victims; and
            (2) at the time of the commission of each of the acts of sexual
      abuse, the actor is 17 years of age or older and the victim is a child
      younger than 14 years of age, regardless of whether the actor knows the
      age of the victim at the time of the offense.
PENAL § 21.02(b). Sexual abuse means an act that violates one or more penal laws
as specified in Section 21.02(c), including aggravated sexual assault and indecency
with a child by contact. See PENAL § 21.02(c)(2), (4); see also PENAL §§ 21.11(a)(1),
(c)(2), 22.021.



      2
       Id. § 22.021(a)(1)(B), (a)(2)(B).
      3
       Id. § 21.11(a)(1).

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                                  II. Evidence at Trial
      Appellant and C.S. lived together for several years; had a male child, B.S., in
2008; and married in 2009. C.S. also had one female child, L.D., from a previous
marriage. While the family lived in Arizona, L.D., who was six years old at the time,
accused Appellant of sexual abuse, but those claims could not be substantiated. The
family moved from Arizona to Abilene in 2010, and while in Abilene, L.D. again
accused Appellant of sexual abuse. In March 2013, L.D. told a trusted neighbor,
Rebecca Smith, of Appellant’s sexual abuse. L.D. used words of description that
reflected the kind of specificity typical of adults, not children. Smith contacted C.S.,
but C.S. was unsupportive of her child’s outcry. After Smith contacted Child
Protective Services, L.D. and B.S. moved into Smith’s home at the request of CPS.
      While L.D. lived with Smith and her family, L.D. sexually abused Smith’s
daughter and explained that she did so because Appellant had abused her in a similar
fashion and she thought it was acceptable. During this same time, B.S., who was
five years old, told Smith that Appellant had put his penis in B.S.’s mouth. B.S. had
begun to act out in sexually inappropriate ways at this time, which included exposing
himself to others at daycare. B.S., however, recanted his prior sexual-assault
allegation at trial. He also denied that he ever acted in a sexually inappropriate way
at daycare. B.S.’s testimony conflicted with that of his counselor, Robert Penton,
who recalled B.S.’s description, during one of their therapy sessions, of Appellant’s
sexual abuse. Penton also testified that B.S.’s sexual misconduct at daycare was
consistent with that of other children who have experienced sexual abuse.
      During trial, L.D., who was then fourteen years old, recounted in detail several
different episodes of sexual abuse by Appellant. Although L.D. could not remember
how many times that Appellant had sexually abused her or recount specific dates,
she testified that he abused her more than once. L.D. described an incident in which
Appellant forced her to perform oral sex on him when they both were in the
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bathroom. L.D. further testified that another time Appellant required her to perform
oral sex on him in her bedroom because she had accidently broken her bed, and he
used his cellphone to access a pornographic video to show her what to do. L.D.
described the video in detail. L.D. testified that Appellant’s sexual abuse usually
occurred on Monday evenings while her mother was out bowling.
      A Texas CPS investigator, Lindsey Morris, testified about CPS’s involvement
in the case after L.D.’s outcry to Smith. Morris testified that CPS had found “reason
to believe” that Appellant had sexually abused L.D. based on her detailed and
extensive outcry.
      The defense questioned L.D.’s credibility and called Appellant’s former
sister-in-law, who testified that L.D. had a reputation for lying and blaming others
for the acts that she committed. Also, Appellant’s nephew, V.A., testified that L.D.
tried to get him to look up pornography on his phone, which contradicted L.D.’s
testimony that she had not done so. Finally, Appellant took the stand in his own
defense and denied that he had ever sexually assaulted L.D. or B.S. Appellant also
denied showing L.D. or his wife any pornographic material for any purpose. In
contradiction of Appellant’s assertions, a detective with the Abilene Police
Department, Stacey Cisneros, testified that Appellant had admitted that he used his
cellphone to access pornographic videos to show his wife how to engage in certain
sexual acts.
                                     III. Analysis
      A. Issue One: The State adduced sufficient evidence for a rational jury
         to have found beyond a reasonable doubt that Appellant committed
         the offense of continuous sexual abuse of a child.
      In his first issue, Appellant argues that inconsistencies in L.D.’s testimony and
the State’s reliance on L.D.’s initial and unsubstantiated outcry in Arizona make the
evidence presented insufficient to support his conviction. We apply the sufficiency

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standard outlined in Jackson and its progeny for Appellant’s sufficiency-of-the-
evidence complaint. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State,
323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). We review all the evidence in the light most favorable to
the jury’s verdict and decide whether any rational jury could have found each
element of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.
      The testimony of a child victim alone is sufficient to support a conviction for
sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2017);
Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (concluding child
victim’s unsophisticated terminology alone was sufficient to establish the element
of penetration beyond a reasonable doubt). The trier of fact may believe all, some,
or none of a witness’s testimony because the factfinder is the sole judge of the weight
and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.
App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet.
ref’d). We defer to the trier of fact’s resolution of any conflicting inferences raised
in the evidence and presume that the trier of fact resolved such conflicts in favor of
the prosecution. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (citing Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993)).
      As outlined in Lee v. State, acts from another state cannot be the basis for a
conviction for continuous sexual abuse of a child in Texas. Lee v. State, No. PD-
0880-16, 2017 WL 4399151, at *2 (Tex. Crim. App. Oct. 4, 2017). Consequently,
we do not consider or review any of the acts that allegedly occurred in Arizona, and
we limit our review to the evidence of acts of sexual abuse that occurred in Texas.
See id. L.D. provided graphic and detailed testimony of Appellant’s acts of sexual
abuse that occurred in Texas. L.D. explained that Appellant forced her to perform
oral sex on him and showed her a pornographic video, which she described in detail.
                                          5
L.D. explained how she was forced to perform oral sex in the bathroom and testified
that Appellant usually sexually abused her on Monday evenings while her mother
was out bowling. The defense attacked L.D.’s credibility, and Appellant denied that
he abused her or B.S. Other witnesses, such as Rebecca Smith and Lindsey Morris,
thought L.D.’s accusations were credible. The jury was aware of the discrepancies
in L.D.’s testimony, but it resolved the conflicting evidence in the State’s favor. We
will not substitute our judgment for the jury’s verdict. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). After a review of the record, we hold that a
rational jury could have found beyond a reasonable doubt that Appellant committed
the offense of continuous sexual abuse of a child. We overrule Appellant’s first
issue.
         B. Issue Two: The trial court did not err when it denied Appellant’s
            request for a jury charge on lesser included offenses because he
            denied any wrongdoing.
         In his second issue, Appellant argues that the trial court “arbitrarily increased
the range of punishment” when it failed to include two lesser included offenses in
the jury charge. Appellant argues that evidence “was elicited . . . which would
support the inclusion of the lesser included offenses” that he requested. We apply
the Aguilar/Rousseau test to determine whether an instruction on a lesser included
offense should be given to the jury. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.
Crim. App. 2012); see Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.
1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). This test has
two steps. Cavazos, 382 S.W.3d at 382.
         The first step is to determine “if the proof necessary to establish [the elements
of] the charged offense also includes the lesser offense.” Id. If this threshold is met,
then the second step is for us to decide whether there is some evidence “in the record
that would permit a jury rationally to find that if the defendant is guilty, he is guilty

                                             6
only of the lesser offense.” Rousseau, 855 S.W.2d at 673. The purpose of the lesser-
included-offense instruction is to avoid leaving jurors with two “equally distasteful”
options: (1) acquit the defendant even though the jury believes he is guilty of the
lesser included offense or (2) convict the defendant even though the jury does not
believe he committed the charged offense. Eldred v. State, 578 S.W.2d 721, 723
(Tex. Crim. App. [Panel Op.] 1979).
      To determine whether Appellant was entitled to the requested instructions, we
must compare the statutory elements of continuous sexual abuse of a young child
with the statutory elements of aggravated sexual assault of a child and indecency
with a child to determine whether “the proof for the offense charged includes the
proof necessary to establish the lesser-included offense and [whether] there is some
evidence in the record that would permit a jury rationally to find that if the defendant
is guilty, he is guilty only of the lesser-included offense.” Hall v. State, 225 S.W.3d
524, 536 (Tex. Crim. App. 2007) (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex.
Crim. App. 1994)).
      Here, the first prong is satisfied. The offenses of aggravated sexual assault of
a child and indecency with a child, as alleged in the indictment in the case before us,
are lesser included offenses of the offense of continuous sexual abuse of a child
under Section 21.02 of the Penal Code. Soliz v. State, 353 S.W.3d 850, 854 (Tex.
Crim. App. 2011). Thus, we must determine whether there is some evidence in the
record that would permit a rational jury to find that, if the defendant is guilty, he is
guilty only of the lesser offense. Hall, 225 S.W.3d at 536. The “some evidence”
requirement for a lesser included offense is not satisfied when the defendant simply
denies the commission of any crime. Willis v. State, No. 07-11-0235-CR, 2012 WL
2072839, at *1 (Tex. App.—Amarillo June 8, 2012, pet. ref’d) (mem. op., not
designated for publication) (citing Bignall, 887 S.W.2d at 24).           In this case,
Appellant did not challenge whether specific instances of assault occurred, but rather
                                           7
asserted that no inappropriate sexual conduct occurred. See Coleman v. State,
No. 11-11-00039-CR, 2013 WL 779898, at *13 (Tex. App.—Eastland Feb. 28,
2013, no pet.) (mem. op., not designated for publication). As a result, the lesser
offenses cannot be included as alternatives to the charge against Appellant of
continuous sexual abuse of a child. See Hall, 225 S.W.3d at 535–36. We overrule
Appellant’s second issue.
                                   IV. Conclusion
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE
November 30, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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