PD-0034-21 03/10/2021
“The court of appeals ignored important evidence and substituted its interpretation of the victim’s testimony for the jury’s.”
Witcher was charged with continuous sexual abuse, which consists of two or more acts of sexual abuse committed against one or more children during a period that is 30 or more days in duration. Tex. Pen. Code § 21.02 (b)(1). The victim said multiple acts of abuse began “[w]hen [her] brother went to jail[,]” which evidence showed was on June 10, 2018—forty-six days before the last act of abuse. Witcher denied committing any act of abuse. After a perfunctory motion for directed verdict was denied, the jury convicted him as charged.
On appeal, he challenged only the sufficiency of the evidence of the duration of the period. The court of appeals reversed on two bases. First, it held the date the victim’s brother went to jail was not adequately identified. The court claimed the State did not establish the precise date on which the victim’s brother went to jail and that the evidence at best vaguely referred to a time span. Second, assuming it would not be speculative to infer the victim’s brother went to jail “around” June 10, the court said that “when” does not mean what everyone at trial apparently thought it meant. Considering various definitions of “when,” it concluded the victim’s testimony “equally supports an inference that the abuse began on the very date her brother went to jail or that it began during that period of her life when her brother went to jail.” Again, the jury was forced to speculate rather than infer.
The State’s petition covers both bases. It argues that the court of appeals ignored testimony from two witnesses—the lead investigator and the victim’s sister—that explicitly refer to June 10 as the beginning of the period at issue. Addressing the court’s alternative argument, the State points out the victim three times said the abuse “started” “when” her brother went to jail. There is no indication anyone understood it to mean anything other than its usual meaning; a witness repeated it without elaboration, defense counsel did not focus on it in his motion for directed verdict, and the trial court affirmed that he had checked the duration element off his list as he listened to the testimony. Only by stripping the victim’s testimony of any context, the State argues, could the court of appeals find it too vague to support a rational inference. That ignores how jurors—regular people doing their duty— process testimony.
