Affirmed and Memorandum Opinion filed January 28 , 202 1

.

In t he 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00181

- CR

JOHN KEVIN DUFOUR , Appellant

v . THE STATE OF TEXAS , Appellee

On Appeal from the 208th District Court

Harris County, Texas Trial Court Ca u s e No. 1522339

MEMORANDUM OPINION Appellan t John Kevin Dufour appeals the trial co urt ’ s judgment convicting him of the first

- degree felony of continuous sexual abuse of a young child, for which the jury assessed punishment at im prisonment for 50 years

. S e e Jessica Lunsford Act , 80th Leg., R. S. , ch. 593, § 1.17 , 2007 Tex. Gen. Laws 1120 , 1 127

– 28 (adding Penal Code s ection 2 1 .02 ) , 1 amended by Act of Apr. 7 , 2011 , 82d Leg.,

1 In 200 7 t he l egis lature created the offense of continuo us sexual abuse of a young child or children in respo nse to an expressed need to address sexual assa ults against young children2

R .S., ch. 1 , § 6.04, se c. 21.02(c), 2011 Tex. Gen. Laws 1, 1 5

– 16 ( since amended ; he re i nafter “ 2011 Penal Code § 2 1 .02 ” )

. . 2 In a single issue , ap pellan t challenges the sufficiency of the evidence , arguing that the State did not prove beyond a reasonable doubt th at th e two acts of sexual abuse alleged to have occurred were committed at lea st 30

- days ap ar t. 2011 Penal Code § 2 1 .02(d). We conclude th at the evidence is sufficient and affirm the judgment

. I. B ACKGROUND
In 2011 , C.B. was nine

. She lived in H o uston wi t h her parents and three siblings. Because her parents worke d long hou r s and her mo th e r often w or ked nights , she stayed with her matern al grandp are n ts

— appellant and his wife

— after school several times per week and oc casionally on weekends. A ppellant and hi s wife l ived in apartments across the street from C.B. ’s family until March 201 4,

w he n C.B. ’s f

am ily moved to a different apartment near by

. Some time s she would stay with her grandpar ents alo ng with all her s iblings, and on occasion she would stay with her g randparents alone. C.B. ’s grandmother also worked evening a nd

o vernights sh ifts wh ic h left app el lant as the only adult in the apartment on t hos e

occa sions

. In 2014, w hen C.B. wa s eleven , C.B . told her mother that appellant had been touching her on “her chest and on her behind. ” C.B

. ’s mother immediately severed

who are typically unable to give pr ecise dates when there ar e ongoing acts of sexual abuse. See Dixo n v. State, 20 1 S.W.3d 731, 737 (Tex. Crim. App. 2006) (Cochran, J., concurring) (“Perhaps the Texas Legislature can address th is conun drum and consider enact ing a new penal statute th at focu ses upon a continuing cou rse of conduct crime

— a sexual ly abusive rel ationship t hat is marked by a pattern or cour s e of conduct of various sexual acts.”)

.

2 This statute was amended in 2017

. T hough th e 2017 amendments do no t apply to this
case , t h e a mendmen ts are im material to the issue raised by appellant. S ee Act of May 28 , 201 7 , 8 5 th Leg., R.S., ch

. 685 , § 3 1 , sec. 21.02(b) (adding “ regardles s of whether the actor knows the age of the victim at the time of the offens e ” ) , 2017 Tex . G en

. Law s 303 8 , 3 056 ; Ac t of May 26 , 201 7 , 8 5 th L eg., R.S., ch

. 1038 , § 2 , sec. 21.02(b) (adding “ regardless of whether the actor knows the age of the victim at the time of the offense ” ) , 2017 Tex . G en

. Law s 4072 , 4 072

.3

contact betwe en appellant a n d all her children, tho ugh she did not m ake a police report. In 2015 , C.B. told her aunt about the abuse and C.B. ’s aunt urged her mother to make a police report. C.B. ’s mother reported t he abuse to the police shortl y thereafter

. As part of th e police i nv e stigation , C.B. participated in a forens ic interview in 201 6 dur ing which she revealed that her grandfath er would touch her breast s and vagina und e r her clothes with his hand too many tim es to
count

. C.B. told C lara Ri ver s, the forensic inter vi ewer , tha t t he sexual ab use

occurr ed for approx imatel y five years and her grandfather gave her money for le tting him touch her

. C.B. told Rivers that she d id not remember exactly when it started, but she recalls being very young. C.B. told Rivers t he a buse stopped wh e n she was 12

. Defendant was charged by indic tment alleging continuous sexual abuse of a yo ung child , w hich identifie d the constituent offense s of aggravated sexual assault of a child occurring on or about October 1, 2011, as well as an act co nstituting t h e offense of indecency w ith a chil d by contact on or about October 1, 2014. At trial , C.B. was 16

. S h e testified that she did not remember the “e xact first time ” appellant sexually abused her , bu t testified about f our specific incidents between 2011 and 20 1 4

. The first inciden t occurred when C.B

. and her si blings were watching television with appellant. She recalls sitting on the couch w it h her grandfather and he was touching her vagina under her clothes while her siblin gs were in the room. The sec ond in c id e nt occurr ed in appel lant ’s room while C.B

. was laying on the bed. A ppellant removed C.B. ’s clothes and licked her vagin a. C.B. could not

re member when the second inci dent occurred in relation to the first incident. C.B

. also described a t hird inc ident i n w hich she accompanied appellant to the grocery
stor e in his truck. In this circumstance, C.B. recall ed asking appellant to touch her4

an d he complied by touching her vagina under clothes. She did not recall when the
t hird inci dent occurred

. C. B. also tes t if i ed to a fou rth incident in which ap pel lant “licked her boobs ” while she was in appellant ’s room

. C.B. testified the abuse did
not ha ppen every time she went to appellant ’s home

. Th ough C.B. was unable to specify a ny time period for the four inci dent s t h at occurred , s he did testify that the i ncidents happened “ less ” after her family moved to a new apartment complex in 2014 , because sh e did not see appellant as often

. II. A RGUMENT
In his sole issue, appellant contends that the evi dence is legally insuffic ient
to sustain his conviction for c ontinuous sex ual assault of a child. Specifically, appellant argues that the State di d not prove that at least two acts of sexual abuse specified in the indictment occurred o ver a period of a t le ast th irty days.
A. Standard of r ev i ew
I n determining whether th e evidence is sufficient to support a conviction, a reviewing court must consider all of the evid ence in the light most favorable to the verdict and determine whether, based on t hat evidence and reasonable inferences the refr o m, a rational jury could have found the esse ntial elements of the crime beyond a reasonable doubt

. Jackson v. Virginia , 443 U.S. 307, 318

– 19 (1979 ) ; Hooper v. State , 214 S.W.3d 9 , 13 (Tex. Crim. App. 2007) ; see also J ourdan v. State , 428 S.W.3d 86, 94 (Te x

. C rim. App. 2014) (jury must find every c onstituent element of charged offense). We may not reevaluate the w eight and credibi lity of the evidence and substitute our judgment for that o f th e jury

. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010 )

. W e de fer to the jury ’ s resolution of any conflicting inferences from the evidence and presume tha t it resol ved such conflict s in favor of the judgment

. Jackson , 443 U.S. at 326 ; Whatl ey v

. State , 445 S.W.3d 159, 166 (Tex. Crim. App. 2014)

. Althoug h juri e s m ay not speculate about5

the meaning of fact s or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at t rial

. C

ary v. State , 507 S .W.3d 750, 757 (Tex. Cri m. App

. 2 0 16) (c iting Jackson , 443 U.S. at 319 ; Hoop er , 214 S.W.3d at 16 )

. We measure sufficien cy to support a conviction by compar ing the evidence presented at trial to “ the elements of the offense a s defined by the hypothetically correct jury charge for the ca s e

. ” Malik v

. St ate , 953 S.W.2d 234, 240 ( Te x. Crim. App. 1997). A hypothetically correc t jury charge reflects the governing law, the charging instrument, the State ’ s burden of proof and theor ies of liability, and an adequate de scription of the offen se for th e particu lar case. Id

. In conducting a

su fficiency review , we must consider the cumulative force of all the evidence. Villa v. State , 514 S.W.3d 227, 232 (Tex. Cri m. App. 2017).

B. A ppl icable law
To establi sh c ontinuous sexual abuse of a child , the State m u st prove the following e lements: (1) the defendant “commit[t ed] two or more acts of sexual abuse” (2) “during a period that is 30 or more days in duration,” and (3 ) “at the time of th e commission of each of the acts of sexual abuse, th e [defendant was] 17 ye a rs of age or older a nd the victim [was] a child younger than 14 years of age.”
2 011 Penal Code § 21.02(b)

. “Acts of se xual abuse” are listed in the statute and , as

re levant here, i nclude indecen cy w ith a child and aggravated s exual assault. See 201 1 Penal Code § 21.02 ( c )

. A person commits aggravated sexual assault if he in tentionally or knowingly causes the sexual organ of a child t o contact or penetrate the mouth, anus , or sex ual organ of another person, i nclu ding the actor

. Act of Apr

. 7, 2011, 8 2 d Leg., R.S.,6

c h. 1 , § 6.05 , se c. 2 2. 021 , 2011 Tex. Gen. Laws 1, 16 (former Tex. Penal Code § 22.021(a) (1) (B)(iii) , (a)(2)( B ) , since amended )

. A person commits in decency with a child if he engages in sexual contact with the child or causes the child to

en ga ge in s exual contac t. Act of May 18, 2009, 81st Leg., R.S., ch. 260, § 1, sec. 21.11(a)(1), 2009 Tex

. Gen . Laws 710, 710 (former Tex. Penal Code § 21.11(a)(1), since amended)

. S exual contact is defin ed to i nclude , as rele vant here, a ny touching by a pers on , incl u ding t ouching through clothing, of the anus, breast, or
any p art of the geni t als of a child with the inten t to arouse or gratify the sexua l desire of any person. Tex. Penal Code Ann. § 21.1 1 (c)(1)

. 3

C. Analysis Appellant argues t hat t he S tate pr esent ed no ev i d ence that the two acts alleged in the indictment too k place during a p eriod that is thirty or more days in duration

. T he indictment alleges:
JOHN KEVIN D UFOUR , hereafter styled the Defendant , heretofore
on or about OCTOB ER 1 , 201 1 , d id then and the re unl a wfully , during
a period of time of thirty or more days in duration , c o mmit a t least two acts of sexual abuse against a child younger than fourteen years o f age , including an act constituting the offense of AGGRAVATED SEXU AL ASSAUL T OF A CHIL D , co mmi tted a g ainst C.B

. on or about OCTOBER 1 , 2011 , and an act constituting the o f fense of INDECENCY WITH A CHILD BY CONTACT , committed against C.B. on or about OCTOB ER 1 , 2014 , and the Defendant was at least seventeen years of age a t the tim e of the co mmiss ion of ea c h of those acts

. C.B. testified to four speci fic incidents of sexual a bu se, one of which satisfies the elements of an aggravated sexual assault. At leas t one of the other thr ee incidents recounted by C.B. satisf ies the requirements for in d ece ncy wit h a

3 F or purposes o f the offense of continuous sex u al ab u se of yo ung child or children , an

“ a ct of s exual a

buse ” d oes not include touching, including touching through clothing, the breast of a ch ild

. 20 11 Penal Code § 21.02 (c) ( 2).7

ch i ld by contact. Though C.B. was unable to provide any time fr ame for a n y of the incidents in her trial testi m ony , C.B. ’ s testimony established that t he sexual abuse occurred be fore and after the family ’ s move in M arch 2014 to a new apartment compl ex

. 4 C.B

. testified that after the move “ ther e was less, like

— because I wouldn’ t see him a s often as I would at Shadow Ridge. ” 5

Th e jur y also heard testimony from Cl ar a Rivers, the for ensic clinician interviewer , as an outcry witness

. Through Rivers, the j ury learn e d C .B. d escribed appellant ’ s touching of her vagin a as occurring ove r approximately a five

- year period and endi ng when she wa s twe lve

. C.B. was not able to r ecall when exactl y the abuse began . She descri bed herself to Rivers as “just really young , ” but sa i d it may have started when she was in the th ird or fourth grade

. C.B

. told Rivers that appellant touched her too man y times t o count

. C.B. also tol d Rivers t hat appellant pai d C.B. different amou nts of m oney , which she believed was related to the le ngth

o f time she allowed appellant to touch her. Rivers ’ s testimo ny establi s hed a pattern of continuous sexual abuse.
While C.B. did not tel l Rivers of th e incident in which appellant l icked her vagina , Rivers also testified t hat children , like C.B., ma y g ive pa r tial disc losur e s because they do not feel comfortable or a re not rea d y. Rivers de scribed that during the interview process the i nterviewer would at tempt to d evelop a rapport with the child and make the chil d feel comfortable. R ivers interviewed C .B. once i n 2016

. The jury could have concluded th at both C.B. ’ s dis cl osure s a t trial a nd her disclosures to Rivers were partial di sclosure s of the sexual abus e experienced by

4 C.B. ’ s mother testi fied that the family moved in March 2014.

5 C.B. was n e v er a sked at trial about the ti me per iod ove r which th e sexual abuse occurred

. She was asked only whe n the in cidents occurred , what grade she was in and how far apart in time two of th e incidents occur red

. She r esponded that she did not kno w to all questi o n s ab out tim ing.8

C.B

. See Tex. Code Crim. Proc. Ann. art. 38.07 (providing conviction for sexual

ass ault o f chil d is “supportable on the uncorroborated testimony of the vict i m ” )

. T aking the cumulative force of C.B. ’ s testimony together wit h River s ’ s testi mony , the jury kn ew that i ncidents o f sexual abuse occurred ov er a multi

- year period beginning ar ound the t i me that C.B. was in the third or fourth grad e. Rivers ’ s testi mony established that appellant ’ s touching of C .B. ’ s vagin a was part

o f a continuous pa ttern of sexual abuse , and not an isolated incident that occur red

a t a singular point in time

. Gi ven the mu l ti

- year pattern of conduct on the part of appellant, the jury cou l d have reasonably inferred th at appellant licked C.B. ’ s vagin a during the time per iod of sexual abuse she id entified for Rivers

. See Hooper , 214 S.W.3d at 15

– 17 (explaini ng that “ an i nferen c e is a conclusion reached by considering othe r facts and deducing a logical consequence from them ” and that appellate courts must consider whether i nferences are reasonable i n light of the “combined and cumulative force of all the evidence” ). Gi ven that C

. B. told Rivers the touching of her vagina occ urred over multiple y ears , too many times to
count , the jury could h ave conclude d beyond a reasonable d o ubt that the licking of C. B. ’ s vagina occur

red at least thirty days before or after one of the i ncid ents i n which appellant touched C.B

. ’ s vagina with hi s hand. Appellant u rges us to find that the evidence is not sufficient to support the verdict bec a use even if some “ activity ” or touching may have taken place in the three

- year time frame identified by R ivers, nothing establishe d that the two acts specified in the indic t ment occurred at least thirty days apart. The essence of

a p pell ant ’s argument is t h at because C.B. did not tell Ri vers about the licking incident , Rivers ’ s testimony canno t prove up t iming for t h e aggravated assault

. Appellant also correctly references th a t C.B. was never able to provide a specific
t ime frame

— or even an approximate one

— to show that the two acts specified in9

the indictment occurred at least thirty days apart. H owever, a ppell ant ’s a rgument requires us to disregard Rivers ’ s testimony and look at the testimony of each witness in is o lation , which conflicts wi th th e governing standard of review requiring us to view the “cumulative force ” of the evidence in the light most favo rable to th e ve r dict

. Hooper , 214 S.W.3d at 13 (citing Johnson v. State , 87 1 S. W .2d 183, 186 (Tex. Crim. App. 1 9 93) ( “ Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminatin g cir cumsta n ces is sufficient to support the conviction

. ”) )

. Though the evidence establish i ng the timing of the two predicate acts adduced by the S tate was not directly established by a ny witness , it satisfies the

s tandard that governs our review. Jackson , 443 U.S

. a t 318

– 19

. Here, the jury heard River s ’ s testimony about appellant ’ s pattern of abuse and reached the conclusio n that the two predicate acts occurred at least thirty days ap a r t. Viewing the evidenc e i n a light most favor able to the jury’s verdic t, a r ationa l jury could have e valuated the cumulative force of the evidence and d eter mined that the two predicate acts occurred at least th irty days apart beyond a rea sonable doubt

. Th e refore, we hold the evidence is sufficient to establish the offense of conti nuous

s exual abuse of a young child and overrule app ellan t ’ s sole issue

.10 C ONCLUSION
W e affirm the trial court ’ s judgment

.

/s/ Charles A. Spain Justice

Pan el con sists of Justices Jewell , Spain , and Wi lson

. Do Not Publish

— T ex. R. App. P. 47.2(b).