### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00639- CR

P aul Michael Sh um aker, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2012 -31 1, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Paul Michae l Shumaker was indicted for two counts o f aggr avated sexual assault of an adult man with sig nificant menta l disa biliti es, J .P. See Tex. Pena l Code § 22.021(a) (setting out elements of offe nse of ag g ravated assault of disabled person) , (e) (explaining that o ffense is first-deg ree felony

). The first count alleg ed that Shumaker intentionally or knowing ly cause d his sexual org an to penetr ate J .P.’s mouth without J .P.’s consent, and the secon d co u n t all eg ed that Shumaker intentionally or knowing ly cause d J .P.’s sexua l o rga n to penetr ate Shumaker’s mouth without J .P.’s consent. B oth counts were alleg ed to have occur red on the same day . On the nig ht

o f th e a ll e g e d o f

f e n s e s , J. P. s p e n

t th e n ig h t a t Sh u ma k e r ’ s h o me , a

n d o n th e f

o ll o w in g d a

y , Sh u ma k e r drove J .P. to the house of his brother, D.P. At the end of the trial, the jury found Shumaker g uilty of both counts, assessed his punishment at five y ear s’ imprisonment for eac h count, and rec ommended that Shumaker be place d on community supervision. I n acc ordanc e with the jury ’s rec ommendation,the d i s trict court enter ed its judgme nt, sentenc ed Shumaker to five y ear s’ imprisonment for eac h

count, suspended the sentenc es, and place d S h u m ak er on community supervision for ten y ear s. See id. § 12.32 (listing permissible punishment rang e for first-deg ree felony ). On appea l, Shumaker

asser ts that the evidenc e is leg ally insufficient “bec ause the State failed to prove [hi s] identity as the perpe trator of

the offe nse[s] .” We will affir m the district court’s judg ments of conviction.

DISCUSSIO N

Suf fi ciency of the Evidence

I n h is sole issue on appea l, Shumaker contends that the evidenc e is leg ally in s u f f ic ie n t to support his two convictions. When prese nting this argument, Shumaker limit s his sufficie ncy challeng e to the evidenc e establishing his identity as the perpe trator and insists that the State failed to prove that he was the perpe trator in eac h offe nse. As support for this argument, Shumaker asser ts that during the trial, J .P. discussed someone named Paul when testify ing about the offe nses but that evidenc e was i n t ro d u ced establishing that Shumaker went by the name “B uddy ” rathe r than by his first name Paul. Moreove r, S humaker contends that “ [n] o one eve r attempted to tie the ‘P aul’ d is c u s s e d b y [ J

. P

. ] w it

h th e A p p e ll a n t r e f e r r e d to a s ‘ B u d d

y ’ b y e v e r y o n e in c lu d in g [J. P. ]” Sp e c if ic a ll y , Shumaker asser t s t h at J .P. was never asked if Buddy and Paul wer e the same person and that no evidenc e was introduced showing that Shumaker was the onl y P au l t h at J .P. knew. Moreove r, 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 alleg ed offe nses. In addition, Shumak er points out that even though the evidenc e prese nted at trial established that J .P. went to Shumaker’s home on more than

2one occa sion and spent the night there on New Yea r’s Eve, that Shumaker and J .P. watche d television at Shumaker’s hom e, and that Shumaker had dog s, J .P. provided testimony that contra dicted that e v id e n c e w h e n d e s c r ib in g h is inte rac tions with “Paul,” who J .P. asser ted committed the offe nses. Specifica lly , Shumaker notes that J .P. could not descr ibe what “‘Paul’s’ house looked like or wher e i t was located,” denied watching “movies at ‘Paul’s’ house, denied play ing on his comput er at ‘P au l’s’ house, and further denied that ‘Paul’ had any pets.” I n light of the above, Shumaker asser

ts that there is no evidenc e establi shing that Shumaker is the person that J .P. was ref err ing to when discussing Paul and that “[t] he only rea sonable infere nce that can be made is that ‘Paul’ is not the same pe rson as [Shumaker] and the State has fa iled to prove a n essential ele ment of the off ense[s].” Under the leg al-suff

iciency standard, appellate courts view the evidenc e in the light most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). When perf

orming this revie w, an appellate court must bear in mind that it is the fac tfinder’ s duty to weig h the evidenc e, to resolve conflicts in the testimony , and to make rea sonable infere nces “fr om basic fac ts to ultimate fac ts.” Id. ; see also Tex. Code Crim. Proc. art. 36.13 (explaining that “jury is the exclusive judge of the fac ts”). Moreove r, appellate courts must “dete rmine whether the

nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of all the evidenc e when viewed in the light most favor able to the ve rdict.” Hooper v . State , 214 S.W .3d 9, 16-17 (Tex

. Crim. App. 2007). Fur thermore , appellate courts presume t hat conflicting infe renc es

w e r e r e s o lv e d in f

a v o r o f th e c o n

v ic ti o n a n d d e f e r to th a t r e s o lu ti o n . Cl a y to n v . S ta te , 2 3 5 S. W. 3 d 7 7 2 ,

3778 (Tex. Crim. App. 2007). I n addition, c ourts must be ar in mind that “dire ct and c ircumstantial

evidenc e are trea ted equally ” and that “[c]ircumstantial evidenc e is as probative as direc t evidenc e in establishing the g uilt of an actor ” and “ca n be sufficie nt” on its own “to establish g uilt.” Kiff e v. State , 361 S.W .3d 104, 108 (Tex. App.—Houston [1s t Dist.] 2011, pet. re f’d)

.

The identity of a perpe trator may be proven by di re ct evidence, circ umstantial evidenc e, or infere nce s . Robertson v. State , 16 S.W .3d 156, 167 (Tex. App.—Austin 2000, pet. ref ’d); see a l

s o E a r l s v. State , 707 S.W .2d 82, 85 (Tex. Crim. App. 1986) (setting out ty pes of evidenc e that may be used to e stablish identity and noting that a lthough victim misidentified juror

a s p e r p e tr ator, circ umstantial evidenc e pointed to defe ndant as perpe trator, including testimony from office r who arr ested defe ndant at scene ). Proof of identity throug h circ umstantial evidenc e is subject to the same standard as is pr oof by direc t evidence , and the suff iciency of the evidenc e identify ing the defe ndant as the offe nder is deter mined from the cumulative eff ect of all the evidenc e. Hudson

v. State , No. 03-04-00733- CR, 2006 Tex. App. L EXI S 7280, at *19-20 (Tex. App.— Au s t i n Aug

. 18, 2006, no pet.) (mem. op., not desig nated for publication). Moreove r, “[t] he absenc e of an in

- c o u r t id e n ti f ic a ti o n is me r e ly a f

a c to r f o r th e ju r y to c o n s id e r in a s s e s s in g th e w e ig h t a n d c r e d ib il it

y of the witnesses’ t es t i m o ny ,” Jones v. State , No. 10-08-00261- CR, 2009 Tex. App. L EXI S 8923, at *3 (Tex. App.—Waco Nov. 18, 2009, pet. denied) (mem. op., not desig nated for publication), see Hudson , 2006 Tex. App. L EXI S 7280, at *8, and “[e]ven a total failure

. . . to identify the defe ndant

on one occa sion g oes only to the weig ht of that person’ s testimony , not its admissibili ty ,” Sharp v. State , 707 S.W .2d 611, 614 (Tex. Crim. App. 1986).

4As pointed out by Shumaker, the rec ord shows that J .P. had difficulty i dentify ing Shumaker. I n his testimony , J .P. stated that he reme mbere d a man named “Paul,” but when J .P. was asked if he saw Paul in the cour troom, he answe red, “

No, not y et. Not y et.” Next, whe n the State direc ted J .P. to look in a particula r portion of the courtroom and asked J .P. if he saw Paul, J .P. said,

“N o , n o t r e a ll y . O h , Pa

u l? I d o n ’ t s e e Pa

u l. ” I n a d d it io n , a s e mp h a s iz e d b y Sh u ma k e r , J. P. w a s u

n a b le to descr ibe what Paul’s house looked like and stated that he did not reme mber if Paul had any pets.

Howeve r, lat er i n h is testimony , J .P. pointed at someone in the courtroom and identified that per son as Paul, and nothing in the record indicates that any one commented that the person that J .P. pointed at was not Shumaker. See Kalka v. State , No. 07-02-00462- CR, 2003 Tex. 1 App. L EXI S 8947, at *8-9 (Tex. App.—Amar illo Oct. 20, 2003, pet. ref ’d) (not desig nated for publication) (disag ree ing with a ssertion that inconsistencies in testimony from victim with me ntal d i s ab ility rende red testimony untrustworthy and noting that inconsistencies simply aff ect “the

we i g ht a juror may assig n to their testimony ”); cf. Hiatt v. State , 319 S.W .3d 115, 121 (Tex

. App.—San Antonio 2010, pet. ref ’d) (explaining that “[c]hil d victims of sexual crimes are aff orded g reat latitude when testify ing and t hey are not expected to testify with the s ame clarity and abilit y

as is expected of a mature and capa ble adult”). I n fac t, when Shumaker later testified and was asked,

I n his br ief, Shumaker notes that J .P. state d that Paul w as on the left side of the room and 1 then asser ts that this is inconsistent with the testimony of Offic er Be n Hay nes, who testified that from his perspe ctive Shumaker was sitti ng on the rig ht side of the room . As d i s cu ssed above, Shumaker did not object or asser t that J.P. had identified someone other than himself during J .P.’s testimo ny and did not dispute the State’s char acte rization that J .P. had pointed at and identified h i m wh en the State was cross-e x amining him. On the contra ry , Shumaker ag ree d that J .P. had rec og nized him. Moreove r, it is not entirely cl ea r that these statements are in fac t inconsistent beca use J .P.’s identification did not cont ai n an y i n dication that J .P. was ref ere ncing the direc tion from his perspe ctive. 5“When [ J

. P

. ] ra i sed his fing er in y our direc tion and single d y ou out as Paul, that seeme d rathe r

cre dible, did it not,” Shumaker did not dispute that J .P. pointed in his direc tion and instead answe red that J .P. did not “know [hi m] as Paul. [J .P.] knows [hi m] as Buddy .” Fur ther, Shumaker ag ree d that when J .P. was testify ing, J .P. rec og nized him as Paul. Cf. Rohlfing v. State , 612 S.W .2d 598, 600-01 (Tex. Crim. App. 1981) (over ruling sufficie ncy challeng e that defe ndant was not proper ly identified in court, in part, be cause defe ndant fa iled to object to identification proc edure used in court)

.

When testify ing about “Paul,” J .P. explained that he met Paul at a g as station and that Paul a sked if he neede d help. I n addition, J.P. answe red, “Uh- huh,” when asked if he met Paul on New Yea r’s Eve. Fur

thermore , J .P. testified reg arding what he was wea ring when he met Paul and stated that the police took those items, including his underw ear , from his ho u s e when they talked with him about the offe nses. Moreove r, during his testimony , J .P. mentioned various sexual acts that

occur red betwee n him and Paul, including statements that Paul’s mouth touched his penis and that he touched Paul’s penis with his mouth. See Tex

. C o d e C ri m. Proc. art. 38.07 (explaining that sexual-assault conviction is supportable by uncorr oborate d testimony of victim of sexual offe nse if victim informed any person about alleg ed offense within one y ear afte r date that offe nse occurre d and excusing time r estraint for victims with “mental disease, defe ct, or injury ”); see also J ensen v. State , 66 S.W .3d 528, 534 (Tex. App.—Houston [14t h Dist.] 2002, pet. re f’d) (explaining that testimony of victim alone is suffic ient to support conviction in sex ual-a ssault case ). I n addition to J .P.’s testimony reg arding who committed the alleg ed offe nses, other evidenc e was introduced establishing that J .P. and Shumaker wer e toge t her on the night of the alleg ed offe nses throug h the testimony of Shumaker, D.P

. , and Deputy J ohn Hall. Specifica lly ,

6Shumaker testified that he met J .P. for the first time on Ne w Yea r’s Eve at a g as station when J.P

.
was opening the g as-station doors for customers, that he left the g as station to g o to a party , that he

saw J .P. was still at the g as station hours later, that he offe red to drive J .P. to D.P.’s house wher e J .P. was living , that D.P. was not home, that he a g ree d to let J .P. stay at his house for the e vening , and that he told J.P

. that J .P. would have to sle ep in his be d beca use his dog s had ruined the car pet. I n his testimony , Shumaker explained that he and J .P. wer e fully clothed when they wer e in bed, denied initiating any

sexual conduct with J .P., a nd stated that he simply

wanted to be J .P.’s friend, but he rela ted that when he woke up ear ly in the morning , he discovere d J .P.’s hand on his crotch and believed that J .P. had been ki ssing him while he was asleep. Schumaker rec alled that he told J .P. to stop and that they went back to sle ep. I n addition, Shumake r explained that he tried to take J .P. home the next morning , that there was no answe r 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 afte rnoon, and that he talked with D.P. about J .P. when th e y a r r iv e d a t th e h o me . F u

r th e r mo r e , Sh u ma k e r e xp la in e d th a

t o v e r th e n e xt f

e w d a y s , h e c o n ti n

u e d to hang out with J .P. and broug ht J .P. back to his house to watch movies and play on the computer.

I n addition to Shumaker’s tes t i m o ny , a rec ording of a conver sation that Shumaker had with the police was play ed for the jury

. On the rec ording , Shumaker admitted that he took J .P. to his home and that he and J .P. slept in the same bed on New Yea r’s E v e. Fur

ther, Shumaker rela ted that J .P. tried to initiate some sexual a ctivity but that he told J.P

. that “we don’t know eac h other that we ll.” Moreove r, on the re cording , Shumaker de scribed J.P. as an attrac tive man.

Be fore Shumaker testified, D.P. was ca l l ed t o the stand to discuss his interac tions with Shumaker. I n his test i mony , D.P. explained that he first met Shumaker on New Yea r’s Day

7when Shumaker drove J .P. home and specific ally identified Shumaker in court as the man who

had driven J .P. home. Moreove r, D.P. testified that afte r J .P. returne d home from hang ing out with Shumaker on a subsequent occa sion, he noticed th at J

. P

. was perf orming an internet sear ch

conce rning sexual topics, that he initiated a conver sation with J .P. about his internet sear ch, and that

as a result of that conver sation, he called the police. I n addition, he explained that h e as k ed t he police to issue a c riminal trespass wa rning ag ainst Shumaker. After D.P. finished his testimony , Offic er Hall was called to the stand to descr ibe his investigation of the alleg ed offe nses and to discuss a conver sation that he had with Shumaker about the nig ht of the alleg ed off enses, a nd a re cording of that conve rsation was pla y ed for the jury . On the rec ording , J .P. explained that a man kissed him on New Ye ar ’s Eve on the man’s bed and discussed other sexual contac t that occur red , an d Of

fi cer Hall ref

err ed to the man as Paul. I n his testimony , Offic er Hall explained that during his investigation, he collecte d the clothes that J .P. wore when he was with Shumaker, and later a DNA technicia n for the police, Allison Hea rd, testified that she perf ormed DNA testing on the items tha t Office r Ha ll collected a nd that the testing perf

ormed

on J .P.’s underw ear reve aled skin cells that wer e consistent with a mix ture of J .P.’s and Shumaker’s DNA profiles. I n addition, althoug h Hea rd explained that there are sever al way s in which skin cells may g et transf

err ed to an objec t without som eone actually touching the obj ect, including transfe rs from other objects, she questioned t he ease with which ski n cells m i gh t b e transfe rre d to clothing that is underne ath additional lay ers of clothing but admitted that she could not rule that out without doing a dditional testing.

8I n light of our standard of revie w; g iven the evidenc e summarized above, including

the evid ence establishing that J .P. was with Shumaker at the time of the alleg ed offe nses and

s p en t the ni g ht at S humaker ’s hom e on the ni g ht of t he allege d offe nses, t he consistency betwe en Shumaker’s testimony

reg arding

how he a nd J .P. met and J .P.’s testimony addre ssing how he and “Paul” met, the evidenc e establishing t h at Shumaker broug ht J .P. home on the morning afte r the offe nses, the evidenc e establishing the occur renc e of the offe nses in questio n , an d t he portion of J .P.’s test i m o n y in which he identified “Paul” in the courtroom; and in light of the rea sonable infere nces that the jury was fre e to make from that evidenc e, we believe that the evidenc e was leg ally

s u f f ic ie n t to e s ta b li s h Sh u ma k e r ’ s id e n ti ty a s th e o f

f e n d e r a t is s u e . S e e Cl a r k v . S ta te , 4 7 S. W. 3 d 2 1 1 , 214-15 (Te x . App.—B eaumont 2001, no pet.) (over ruling sufficie ncy challeng e base d on premise that victim was unable to identify him as man who had assaulted her and deter mining t h at ev en if no witness could identify defe ndant as perpe trator, verdic t wa s n ot improper if other evidenc e indicated that he was perpe trator) ; see also Kalka , 2003 Tex. App. L EXI S 8947, at *10 (dete rmining
t h at fa ct that victim “may have had the mind of a six y ear old, that her testimony may have been inconsistent at times, and that she could not say the word ‘conf used,’ does not strip the verdic t of

. . . leg ally

. . . sufficie nt evidentiar y supp o rt gi v en the entirety of the evidenc e and the jury ’s rig ht to weig h it and assess the cre dibilit y of those testify ing” ). Acc ording ly , we overr ule Shumaker’s issue on appea l.

CONCLUSION

Having overr

uled Shumaker’s issue on appea l, we aff irm the district court’s judgme nts of conviction.
9__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: Aug ust 20, 2015 Do Not Publish

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