## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00158

- CR

AARON MICHAEL MARSHALL , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2022F0 0 019

B e fore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION

A Cass County jury convicted Aaron Michael Marshall of continuous sexual abuse of a

young child and assessed a sentence of fifty years’ impri s o nment

. See T EX

. P ENAL C ODE A NN

. § 21.02 (Supp.)

. On appeal, Marshall argues that the evidence is legally insufficient to support the jury’s verdict. 1 We find that the jury’s verdict was supported by legally sufficient evidence. As a result,

we overr u l e Mars h all’s sole point of error in this case and affirm the trial court’s judgment.
I. Standard of Revi ew “In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to determine whether any r a t ional jury could have found the essential elements of the offense beyond a reasonable doubt.” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019, pet. ref’d) (citing Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality o p .); J a ckson v. Virginia , 443 U.S. 307, 319 (1979); Hartsfield v.
State , 305 S.W.3d 859, 863 (Te x. App.

— Texarkana 2010, pet. ref’d)). “Our rigorous [legal sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks , 323
S.W

. 3 d at 9 17

– 18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of t he Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reaso n a ble i n ferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

1 In companion ca u se numbers 06

- 23

- 00159

- CR and 06

- 23

- 00160

- CR, Marsha ll app eals from con v i ctions of se xual as sault of a child . In companion ca u se number s 06

- 23

- 000161

- CR through 06

- 23

- 00166

- CR, Mar shall ap peals from six convictions for indecency with a child.3

(citing Jackson , 443 U.S. at 318

– 19; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))). “Legal sufficiency of the evi d e nce i s measured by the elements of the offense as defined by a hypothetically correct jury char ge.” Id. at 298 (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets

o u t the l aw, is authorized by the indictment, does not unnecessarily increase the State’s burden o f proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.’” Id. ( q uotin g Malik , 953 S.W.2d at 240). Here, the Stat e ’s indictment alleged that Marshall
did then and there, during a period that was 30 or more days in duration, namely from on or about August 1, 2015 [,] through May 31, 2017, when the defendant was 1 7 y ear s o f age or older, commit two or more acts of sexual abuse against Alice Owens (pseudonym ), a child y ounger than 14 years of age namely:

• Indecency with a child by contact: the defendant did then and there, with the intent to arouse or gratify the se xua l de si re of said defendant, intentionally or knowingly engage in sexual contact with Alice Owens ( pseudonym) by touching the genitals of Alice Owen [s] (pseudonym);

• Aggravated sexual assault of a child: the defendant did then and there intentionally an d k n o w ingl y cause the penetration of the sexual organ of Alice O wen s (pseudonym), a child who was younger than 14 years of age, by defendant ’s finger. [ 2 ]

2 “Although the State may choose to allege the predicate acts wi th specific ity as t o the manner and me ans in which they were committed, the State is not constitutionally required to do so.” Buxton v. State , 526 S.W.3d 666, 682 (Tex. App.

— Houston [1 st Dist .] 2017, pet. ref’d).4

II. The Evidence at Trial
Owen s 3 was nineteen at the time of trial and testi fie d that Marshall committ e d several acts of sexual abuse against her. According to Owen s , the first inappropriate act occurred when she was twelve and living in Seagoville, Texas. Owen s testified that Marshall woke her up while she was sleeping by g rabbing her b reasts. 4 Owens sa i d that the incident made her feel shocked , uncomfortable, and scared to tell anyone. Owens said that she lived in Seagoville for about one

year and that Marshall continued his inappropriat e t ouching of her breasts “maybe two to three
times a week.” 5
Ac c ording to Owen s , she was thirteen when she moved from Seagoville to Linden,
Texa s. Owens testified that , while living in Linden, Marshall touched her breasts and vagina
under her cl oth ing. W hen asked to recall the first time that the abuse happened in L i nden,
Owen s said, “ I believe I was 13. This was the first time that I can remember that anything happened underneath the clothes and [Marshall] switched from just th e b reast to lower. ” Owens said that the frequency of the vaginal touching in Linden wa s “ [t]wo, t hr ee, maybe four times a
week

. ”
Owens testified that, on two occasions while living in Linden, Marshall penetrated her vagina with his fingers , altho ugh she could not remember when that happened

. According to
Owen s , Marshall asked to have se x with her when she was “in

- between 14

-- maybe 15,” but she

3 To protect her identity, we will use the State’s as signed p s e udonym for the ch i ld com plainant and will also refer to her family members by pseudonym

. See T EX

. R. A PP

. P. 9.10.

4 Touching the bre ast of a chi ld is not a predicate offense for continuous se xual abuse of a young child. See T EX

. P EN AL C ODE A NN

. § 21.0 2 ( c)(2).

5 Owen s could not remember if the t ouchin g in Seagoville occurr ed over or underneath her clothing.5

did not allow it

. Owens testified that all the sexual abuse st opp ed when she was six teen bec ause her mother caught Marshall

. Owen s ’s mother said that she caught Marshall coming ou t of Owen s ’s room in 20 19 and that, after questioning Marshall , he admitted to touching Owens three or four times on the brea sts
and buttock. M aureen Fletcher, a forensic interviewer with the Texarkana Child ren ’ s Advocacy
Center (CAC) , testified that Owens wa s ve ry n e rvous when di scussing her allegations and did not appear to have been coached or coerced. Cod y Sartor, an invest igator w ith the Cass County District Attorney’s Office, testified that hi s interview with Owen s ’s mother corroborated some of
the stat emen ts i n Owen s ’s CAC interview with Fletcher. In his defense, Marshall denied all of the allegations and te stified that Owen s ’s mother was lying. Marshall’s sister also testified that Owens lied to get attention

. After hearing the evidence, the jur y co nvic t ed Marshall o f continuous sexual abuse of a young child. 6

6 Mirroring the St ate’s indictme nt, the trial court’s charge asked the jury whether it found, beyond a reasonable doubt, that M arshall

1.

. . . d uring a period between on or abo ut August 1, 2015 [,] and on or a bout May 31, 2017, committed two or more of the following al leged acts o f sexual abuse:
A. Indecency with a Child where:
1. the defendant engaged in sexual contact with Alice Owen s (a pse u d o nym) by any touching of a ny part of the geni tals of A lice Owens (a pseudonym);
2. Alice Owens (a pseudonym) was a child yo unger than s eventeen years old; and
3. the defendant did this with the intent to arouse or gratify the sexual desire of t he defen d a n t; or6

III. Suff

ici ent Evidence Suppo rted the Jury’s Verdict of Guilt Under the hypothetically correct jury charge, the State had to prove the following four elements: “(1) [Marshall] committe d tw o or more acts of sexual abuse ; (2) over a span of thirty days or more; (3 ) a gainst [Owen s ]; a nd (4) tha t at the time of the sexual abuse [Marshall] was seventeen years of age or older and [Owen s ] was younger than fourteen years of age.” Williams
v. S tate , 30 5 S.W.3d 886, 889 (Tex. App.

— Texarkana 2010 , no pet.). 7 Marshall argu es that the jury cou ld not hav e convicted him of continuous sexual abuse
because there was insufficient evidence of aggravated sexual assault committed against Owens
when she w as y ounger than fourte en. When asked when the penetration of her vagina occur red , Owens testified that she did not know, which prompted the following exchange:

Q. [(By the State)] Was it at the house in Linden?
A. Yes.

B. Aggravated Sexu al Assault of a Chi ld w here:
1. the defendant intentionally or knowingly caused the penetration o f the sexual organ of Alice Owens (a pseudonym) by his finger; and
2. Alice Owens (a pseudonym) was a child yo unger than 14 years o f age.
2. these acts wer e committed during a pe riod that was thirty or more days in duration; and
3. at the time of commis sion of each of the acts of sexual abuse the defendant was seventeen years old or older; and
4. at the time of commiss ion of e a c h of the acts of sexual ab use the victim was a ch ild y ounger than fourteen years old. “[M]embers of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact da te wh en tho se acts w e r e committed.” T EX

. P ENAL C ODE A NN

. § 21. 02( d)

.

7 It is undisputed that Marshall was seventeen years of age or ol der at the ti me of the offense

.7 Q. After y ’ all moved ba ck fro m Se agovil l e?
A. Ye s. Q. And when y ’ all moved back from Seagoville, how old were you?
A. I was 13. Q. Okay. An d was it short

-- ? Was it close to the time y ’ all moved back from Seagoville?
A. I don ’ t recall. Q. Okay. It ’ s possible that it w ould h a ve been?
A. Yes.
While we will assume that such testimo ny is not proof beyo nd a reasonable doubt that M arshall

pe netrated Owens ’s vagina when she was younger than thirteen, this does not end our inquiry. 8 Here, as in Williams , the Stat e alle ged that i n decency wit h a child and aggravated se xual
assault of a c hild were the acts o f sexual abuse committed. S ee i d. at 890. Yet, proof of only
two or more acts of sexual abuse of a child under fourteen over the span of thirty days or more is requir ed

. As a r esult, “ the State [ had ] to prove that [Marshall] commit ted aggravated sexual
assaul t two or more times; indecen cy with a child by contact two or more times; or that Williams committed at least one act of aggravated sexual assault and at le ast on e ac t of i n decency wit h a
child ” during the relevant time frame. Id. ( e mphasis added)

. In Williams , we found that , because the record supported two or more acts of aggravated sexual assault within the required

8 Instead, this evidence was sufficient to support Marshall’s convictions in cause number s 06

- 23

- 001 59

- CR and 0 6

- 23

- 00160

- CR for sexual assault of Owens at a t ime when Owens was seventeen or younger.8

timeframe, Williams’ s complaints of in suffic ient evide n ce su pportin g indecency with a child

were moot. Id. at 891.
The reasonin g in Williams applies here. Marshall contends that there was no evidence showing he committed aggravated sexual assault by penetrating Owen s ’s sexual organ when s he

was you nger t h an fourtee n
. See T EX

. P ENAL C ODE A NN

. § 21.02(b)(2)( A). However, as in
Williams , there was ample evidence of more than o ne act of indecency with a child within the required time frame. See Williams , 305 S.W.3d at 891. T he jury heard Ow ens te stif y that she
was th irteen when she moved to Linden , that Marsh all touched her vagina under neath her clothing when she was thirteen , and that this touching occurred “ [ t ] wo, three, maybe four times a week.” Owens testified that she was “so used to it hap peni ng, tha t it was

. . . we ird and shocking

to [her] tha t it wouldn’t happen occasio nally.” Owens also said that the a buse las ted for several

years , supporting a reasoned inference that the indecent touching of her sexual organ happened
often fr om the time she was t hirteen unti l her f ourteenth birthd ay
. Accordingly, w hen vie wing the evidence in the light most favorable to the jury’s verdict,
we find sufficient evidence showing that, at a minimum, Marshall committed two or more acts of
indecenc y with Owens by touc h ing her geni tals at a time when she was younger than fourteen

a nd that the two acts were committed during a period t hat was thirty days or more in duration

. As a result, we overrule Marshall’s sole point of error and affirm the trial court’ s judgment

.9

IV. Conclu sion
We affirm the tr ial court’s judgment.

Char les van Cleef Justice
Date Submitte d: July 5, 2024 Date Decided: July 12 , 2024
Do Not Publish