      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00204-CR



                                  Rickey Rea Rowlett, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2011-599, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found Rickey Rea Rowlett guilty of continuous sexual abuse of a young

child, R.R., and assessed sentence of fifty years in prison. See Tex. Penal Code § 21.02. On appeal,

appellant challenges the sufficiency of the evidence to support the verdict and contends that the

trial court should have granted his motion for directed verdict on the issue of whether he committed

acts over a period of at least thirty days. Appellant also asserts that he was denied a fair trial by the

trial judge’s failure to recuse himself when the judge “became a witness” in the case. We affirm the

judgment.


                              SUFFICIENCY OF THE EVIDENCE

                Appellant challenges the sufficiency of the evidence to support three different

findings: aggravated sexual assault, indecency with a child, and acts occurring over thirty or more
days. We will combine our discussion of the latter issue with his contention that the trial court erred

by denying his motion for directed verdict regarding the duration of the offense.


Relevant law

               The trial court instructed the jury to assess whether appellant had committed two

or more sexually abusive offenses against R.R. during a period lasting longer than thirty days

starting on or about October 2, 2008, and lasting through on or about July 22, 2011. See Tex. Penal

Code § 21.02. The relevant sexually abusive offenses included aggravated assault by intentionally

or knowingly causing (1) the penetration of R.R.’s female sexual organ with his male sexual organ,

(2) contact by R.R.’s female sexual organ with his male sexual organ, or (3) the penetration of R.R.’s

female sexual organ with his finger. See id. § 22.021. The relevant sexually abusive offenses also

included indecency with a child that occurred if, with the intent to arouse or gratify the sexual desire

of any person, appellant engaged in sexual contact with R.R. by (1) touching her genitals with his

hands or fingers, or (2) touching R.R.’s anus with his hands or fingers. See id. § 21.11.

               When reviewing the sufficiency of the evidence, we consider all of the evidence in

the light most favorable to the verdict to decide whether any rational trier of fact could find the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). The jury is the sole judge of the credibility and weight to be attached to the testimony of

witnesses. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S.

at 319). We presume that the jury resolved any conflicting inferences in favor of the verdict and we

defer to that resolution. Id. We use the same standard of review to assess the denial of a motion for




                                                   2
directed verdict. Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989); Balfour v. State,

993 S.W.2d 765, 768 (Tex. App.—Austin 1999, pet. ref’d).

               In a prosecution for sexual assault of a child, penetration may be proven by

circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990). We

do not expect child victims to testify as clearly as mature, capable adults. Id. at 134. Outcry

testimony can be legally sufficient to support a conviction for aggravated sexual assault of a child.

See Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim. App. 1991). Because there is rarely

direct evidence of the accused’s intent in these type of cases, the fact-finder must usually infer

intent from circumstantial evidence such as the accused’s words and conduct. Hernandez v. State,

819 S.W.2d 806, 810 (Tex. Crim. App. 1991).

               The State is not required to prove that an offense was committed on the date alleged

in the indictment but may prove that the offense was committed on any date prior to the return of

the indictment and within the period of limitations.1 See Klein v. State, 273 S.W.3d 297, 304 n.5

(Tex. Crim. App. 2008).


Evidence

               There is no dispute concerning the general background facts of this case. R.R. was

born in October 2001 to F.R., who is appellant’s daughter. In July 2007, R.R. and her younger

brother moved with their mother into appellant’s home. By May 2008, appellant and his wife were




       1
        The trial court instructed the jury that it could only consider actions occurring after
September 1, 2007, the effective date of the continuous-sexual-assault statute. Martin v. State,
335 S.W.3d 867, 876 (Tex. App.—Austin 2011, pet.ref’d); see also Tex. Penal Code § 21.02.

                                                 3
the children’s primary caregivers because F.R. was having some personal issues. R.R. began therapy

with Tara Kvanvig-Garza in July 2009 for adjustment disorder, anxiety, and sadness. After a while,

R.R. stopped going to therapy, but then resumed in July 2011 when she began to feel unsafe and

have nightmares. Appellant and his wife adopted R.R. in June 2010.

               Evidence supporting the verdict came primarily from R.R., her therapist, a sexual-

assault nurse examiner, and a New Braunfels police officer.


•      R.R. testified that appellant touched her private areas—her chest and where she goes to the
       bathroom—with his fingers. She testified that it happened more than once, beginning when
       she was seven, eight, or nine—she was not sure exactly—and ending in July 2011. She said
       he touched her with one hand and was touching his own area—where he goes to the
       bathroom—inside his underwear. R.R. said that no one other than appellant touched her
       that way.

•      Therapist Kvanvig-Garza testified that R.R. told her that appellant began touching her
       when she was six years old and that he did so more than once. R.R. told Kvanvig-Garza that
       appellant touched her vaginal area, breasts, and buttocks inside and outside her clothing.
       R.R. told her that appellant used his fingers to go inside her private parts and attempted
       penetration by putting his penis between her legs. She testified that R.R. denied that
       appellant engaged in oral sex, but did say that he kissed her on her forehead and sometimes
       on her lips.

•      Nurse examiner Moira Foley examined R.R. on July 23, 2011, and testified that R.R. said
       her father (appellant had adopted R.R. by that point) touched her in her “girl parts”—her
       breasts, vagina, and buttocks. R.R. said he got into bed with her at 3:45 a.m. two days before
       the exam wearing only underwear, while she had on a t-shirt as a nightgown. She said he
       touched her with his hand, and that this had happened before.

•      New Braunfels police officer Darren Rutledge interviewed appellant. (The jury watched the
       video of appellant’s interview.) Appellant admitted having his hands in R.R.’s underwear,
       though he did not admit penetration with his fingers or penis. Appellant said that his
       hands were far enough down that he could tell that she had no pubic hair. He denied
       doing anything to arouse or gratify anyone sexually. He said that R.R. was pushing his hands
       toward her anus. Rutledge testified that Kvanvig-Garza said she had no reports that R.R. had
       a tendency to pull appellant’s hand toward any part of her body. Rutledge said he did not



                                                 4
       investigate appellant’s suspicion that R.R. had been acting out with a neighbor boy or others
       at daycare.


Kvanvig-Garza testified that R.R. lied on occasion. She mentioned R.R. telling people at school that

Kvanvig-Garza was her mother or lying about classmates. Kvanvig-Garza testified that R.R.’s

stories about appellant’s abuse were consistent enough that she believed they were true.

               Appellant presented evidence from his wife and several friends and coworkers who

testified that he had a good reputation for being law-abiding and for dealing with children.


•      Appellant’s wife, Linda Rowlett, testified that R.R. touched people inappropriately from the
       time she moved in with the Rowletts in July 2007. Rowlett said R.R. would touch Rowlett’s
       breast inside her blouse and would put her hand on a person’s thigh and slide it upward.
       R.R. also did this at day care. She found appellant in bed with R.R. in only his underwear,
       but believes appellant’s statement that R.R. moved his hand inside her underwear. She said
       that R.R. has attempted to move Rowlett’s hand up her (R.R.’s) thigh.

•      Appellant’s friends, Joan and Wayne Klein, both testified that R.R. engaged in inappropriate
       touching from the beginning of her stay with appellant. She would sit on people’s laps, reach
       inside their shirts, and move her hand up their thigh from their knee. Joan testified that the
       Rowletts would correct R.R., but she would do it again. They testified that R.R.’s behavior
       made them so uncomfortable that they stopped socializing with appellant and his wife.

•      Appellant’s sister, Janet Preston, testified that R.R. acted very sensuously for a young child.
       R.R. sat on Preston’s great-nephew’s lap and acted very clingy and flirty like a much
       older girl.

•      Lisa Drennan, a friend, testified that R.R. tried to act older than she was and was
       domineering and manipulative.

•      Mary Ann Steele Tison, a former child protective services conservatorship worker, met
       R.R. while working on R.R.’s mother’s parental rights termination case. She saw nothing
       from R.R. that gave her concerns about sexual abuse. She testified that R.R. was a wild,
       uninhibited child who acted provocatively for a seven-year-old. R.R. would straddle her
       mother, rub on her, and make provocative dance moves. Tison testified that R.R.’s behavior
       improved in appellant’s care, though when she wanted something she would throw a fit



                                                 5
       or do whatever she needed to get what she wanted. Tison said she had concerns about R.R.’s
       mother’s behavior.

•      Joseph Garcia, who served as R.R.’s attorney ad litem, testified that he saw no red flags that
       she was being sexually assaulted.


Appellant also introduced testimony from another sister, Bonnie Faye Morris, who said that R.R. was

being coached during her testimony. She said a woman would lean forward, and R.R. would not

answer; if the woman smiled, then R.R. would answer; and if the woman leaned back, R.R. would

answer “no.” The woman identified was Melinda Rapp, the court appointed special advocate, who

testified that she did not try to tell R.R. how to answer but simply smiled at her to let her know she

was there. Nick Reininger, who was the bailiff in the courtroom during that testimony, testified that

he did not see any coaching, but admitted that there were a lot of people to watch in a big space.

               We conclude that, while the evidence was not explicitly detailed in every aspect, there

is enough evidence to permit a rational jury to find the elements of the offense beyond a reasonable

doubt. Kvanvig-Garza testified that R.R. told her that appellant “used his fingers to go inside of her

private parts,” which R.R. testified included her chest and the parts she used to go to the bathroom.

R.R. testified that appellant would touch her with one hand and would have his hand inside his

underwear touching his “area.” R.R. testified and told Kvanvig-Garza that the touching happened

more than once beginning when she was six and running through a Thursday in July 2011. As R.R.

was born on October 2, 2001, she was six years old from October 2, 2007, through October 1, 2008.

Nurse Foley testified that she examined R.R. on July 23, 2011 (a Saturday), for an alleged

assault that occurred two days earlier. Thus, the jury could rationally conclude that the State

proved that appellant touched R.R.’s sexual organ with the intent to arouse or gratify his sexual

                                                  6
desire—indecency by contact—on more than one occasion starting by October 1, 2008, and

continuing through July 21, 2011—a period of more than thirty days. This evidence proves

aggravated sexual assault through appellant’s penetration of R.R.’s sexual organ with his fingers,

his touching of her genitals with the intent to arouse or gratify his sexual desire, and duration of more

than thirty days.

                Appellant’s arguments about inconsistencies and unlikelihood (i.e., R.R.’s testimony

that she saw his penis under covers at night) as well as occasions on which R.R. lied all pertain

to her credibility—a consideration whose resolution is left almost entirely to the jury. See Temple,

390 S.W.3d at 360. Similarly, his arguments that CPS and the court would not have approved his

adoption of R.R. in 2010 had there been any sign that he was abusing R.R. do not require reversal.

The jury could have believed appellant’s argument, or it could have determined that he and R.R.

concealed the ongoing abuse from investigators and the court for years. Kvanvig-Garza testified

that, when describing the offenses, R.R. said that she did not tell anybody about the abuse and that

she did not want anybody else to be told. She also said that she did not tell appellant’s wife because

she did not want to make appellant fight with his wife.

                We conclude that sufficient evidence supports the jury’s findings on the elements

challenged and that the trial court did not err by denying appellant’s motion for directed verdict on

the duration issue.


                                      FAILURE TO RECUSE

                Appellant contends that the trial judge erred by failing to recuse himself when he

“became a witness” due to his previous action of signing the order approving appellant’s adoption

                                                   7
of R.R. At trial, appellant sought to introduce the order, but the trial court sustained the State’s

objection that his having signed the order would be a comment on the weight of the evidence. See

In re M.S., 115 S.W.3d 534, 538 (Tex. 2003). Appellant contends that the trial judge should have

sua sponte recused himself to permit appellant to show the jury the order and get a fair trial. He

argues that admission of the order would have supported his argument that the abuse could not have

occurred because any abuse would have been revealed during R.R.’s previous course of therapy and

the State’s rigorous investigations preceding the adoption.

                Appellant waived this issue by not moving to recuse the judge.2 This case does not

present grounds for automatic disqualification of the judge. See Tex. Const. art. V, § 11 (no judge

shall sit in any case wherein the judge is interested, either of the parties is connected by affinity or

consanguinity within the degree prescribed by law, or the judge was counsel); see also Tex. Code

Crim. Proc. art. 30.01. Bias can also be ground for disqualification in a criminal case if it is of a

nature and extent that it denies the defendant due process,3 but appellant has not raised the issue

in this case. The procedure for recusal of judges in Texas Rule of Civil Procedure 18a also applies in

criminal cases. Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993). Failure to make a

timely motion to recuse waives any appellate complaint. See id. (cited in Sodeman v. State,

       2
          We also note that, although appellant asserts here that he was deprived of the ability to
examine the judge—who he describes as a material witness—he did not list the judge as a witness,
indicate at trial a desire to call him as a witness, or make or request to make a bill of exception
showing what the judge’s testimony would have been.
       3
          See McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983), overruled on other
grounds, DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (“When a recusal motion is
timely filed, Rule 18a leaves a trial judge with no discretion--the trial judge must either recuse
himself or refer the motion for another judge to decide.”)


                                                   8
915 S.W.2d 605, 608 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d untimely filed)); see also

Gill v. Texas Dep’t of Crim. Justice, Institutional Div., 3 S.W.3d 576, 579 (Tex. App.—Houston

[1st Dist.] 1999, no pet.). Accordingly, a complete failure to file a motion to recuse waives any

appellate issue regarding mere recusal. See also Tex. R. App. P. 33.1.

               We also note that, despite the judge’s choices to exclude the order and to continue

to preside over the case, appellant presented his argument that the alleged sexual abuse was

incongruent with the adoption proceedings through testimony. The fact of the adoption and its

timing was before the jury. We do not believe that the trial judge’s failure to recuse himself

sua sponte after excluding the order of adoption contributed to the verdict or harmed appellant.


                                         CONCLUSION

               We affirm the judgment.



                                             __________________________________________

                                             Jeff Rose, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: May 8, 2014

Do Not Publish




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