Opinion filed November 30, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-16-00266-CR

__________

MICHAEL ALLEN STITES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 26012A

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

The jury found Michael Allen Stites guilty of continuous sexual abuse of a 

child.

1 The trial court assessed punishment and sentenced Appellant to confinement 

for twenty-five years. On appeal, Appellant challenges the sufficiency of the

evidence and asserts that the trial court should have provided the jury with an 

 

1See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2017).
2

instruction on the lesser included offenses of aggravated sexual assault of a child2

and indecency with a child by contact.

3 We affirm. 

I. The Charged Offense

The grand jury returned an indictment against Appellant for continuous sexual 

abuse of a child, which the State later amended. In the amended indictment, the 

State alleged that Appellant had committed continuous sexual abuse of a child when 

he committed aggravated sexual assault of a child against L.D. and B.S., children 

younger than fourteen years of age, by causing L.D.’s mouth and B.S.’s mouth to 

contact his male sexual organ. The State also alleged that Appellant committed the 

act of indecency by contact with L.D. when he caused her hand to touch his male 

sexual organ. The State alleged that these acts occurred during a period of more than 

thirty days, from January 1, 2008, through March 1, 2013, and that Appellant was 

more than seventeen years of age at the time.

A person commits the offense of continuous sexual abuse of a child if:

(1) during a period that is 30 or more days in duration, the person 

commits two or more acts of sexual abuse, regardless of whether the 

acts of sexual abuse are committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual 

abuse, the actor is 17 years of age or older and the victim is a child 

younger than 14 years of age, regardless of whether the actor knows the 

age of the victim at the time of the offense.

PENAL § 21.02(b). Sexual abuse means an act that violates one or more penal laws 

as specified in Section 21.02(c), including aggravated sexual assault and indecency 

with a child by contact. See PENAL § 21.02(c)(2), (4); see also PENAL §§ 21.11(a)(1), 

(c)(2), 22.021.

 

2

Id. § 22.021(a)(1)(B), (a)(2)(B).

3

Id. § 21.11(a)(1).
3

II. Evidence at Trial

Appellant and C.S. lived together for several years; had a male child, B.S., in 

2008; and married in 2009. C.S. also had one female child, L.D., from a previous 

marriage. While the family lived in Arizona, L.D., who was six years old at the time, 

accused Appellant of sexual abuse, but those claims could not be substantiated. The 

family moved from Arizona to Abilene in 2010, and while in Abilene, L.D. again 

accused Appellant of sexual abuse. In March 2013, L.D. told a trusted neighbor, 

Rebecca Smith, of Appellant’s sexual abuse. L.D. used words of description that 

reflected the kind of specificity typical of adults, not children. Smith contacted C.S.,

but C.S. was unsupportive of her child’s outcry. After Smith contacted Child 

Protective Services, L.D. and B.S. moved into Smith’s home at the request of CPS.

While L.D. lived with Smith and her family, L.D. sexually abused Smith’s 

daughter and explained that she did so because Appellant had abused her in a similar 

fashion and she thought it was acceptable. During this same time, B.S., who was 

five years old, told Smith that Appellant had put his penis in B.S.’s mouth. B.S. had

begun to act out in sexually inappropriate ways at this time, which included exposing 

himself to others at daycare. B.S., however, recanted his prior sexual-assault 

allegation at trial. He also denied that he ever acted in a sexually inappropriate way 

at daycare. B.S.’s testimony conflicted with that of his counselor, Robert Penton, 

who recalled B.S.’s description, during one of their therapy sessions, of Appellant’s 

sexual abuse. Penton also testified that B.S.’s sexual misconduct at daycare was 

consistent with that of other children who have experienced sexual abuse.

During trial, L.D., who was then fourteen years old, recounted in detailseveral 

different episodes of sexual abuse by Appellant. Although L.D. could not remember

how many times that Appellant had sexually abused her or recount specific dates, 

she testified that he abused her more than once. L.D. described an incident in which

Appellant forced her to perform oral sex on him when they both were in the 
4

bathroom. L.D. further testified that another time Appellant required her to perform 

oral sex on him in her bedroom because she had accidently broken her bed, and he 

used his cellphone to access a pornographic video to show her what to do. L.D. 

described the video in detail. L.D. testified that Appellant’s sexual abuse usually

occurred on Monday evenings while her mother was out bowling.

A Texas CPS investigator, Lindsey Morris, testified about CPS’s involvement

in the case after L.D.’s outcry to Smith. Morris testified that CPS had found “reason 

to believe” that Appellant had sexually abused L.D. based on her detailed and 

extensive outcry.

The defense questioned L.D.’s credibility and called Appellant’s former 

sister-in-law, who testified that L.D. had a reputation for lying and blaming others 

for the acts that she committed. Also, Appellant’s nephew, V.A., testified that L.D. 

tried to get him to look up pornography on his phone, which contradicted L.D.’s 

testimony that she had not done so. Finally, Appellant took the stand in his own 

defense and denied that he had ever sexually assaulted L.D. or B.S. Appellant also 

denied showing L.D. or his wife any pornographic material for any purpose. In 

contradiction of Appellant’s assertions, a detective with the Abilene Police 

Department, Stacey Cisneros, testified that Appellant had admitted that he used his 

cellphone to access pornographic videos to show his wife how to engage in certain 

sexual acts. 

III. Analysis

A. Issue One: The State adduced sufficient evidence for a rational jury 

to have found beyond a reasonable doubt that Appellant committed 

the offense of continuous sexual abuse of a child. 

In his first issue, Appellant arguesthat inconsistencies in L.D.’s testimony and 

the State’s reliance on L.D.’s initial and unsubstantiated outcry in Arizona make the 

evidence presented insufficient to support his conviction. We apply the sufficiency 
5

standard outlined in Jackson and its progeny for Appellant’s sufficiency-of-theevidence complaint. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 

323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 

(Tex. Crim. App. 2007). We review all the evidence in the light most favorable to 

the jury’s verdict and decide whether any rational jury could have found each 

element of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.

The testimony of a child victim alone is sufficient to support a conviction for 

sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2017); 

Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (concluding child 

victim’s unsophisticated terminology alone was sufficient to establish the element 

of penetration beyond a reasonable doubt). The trier of fact may believe all, some, 

or none of a witness’s testimony because the factfinder is the sole judge of the weight 

and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.

App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. 

ref’d). We defer to the trier of fact’s resolution of any conflicting inferences raised 

in the evidence and presume that the trier of fact resolved such conflicts in favor of 

the prosecution. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; Fuentes v. 

State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (citing Turro v. State, 867 

S.W.2d 43, 47 (Tex. Crim. App. 1993)).

As outlined in Lee v. State, acts from another state cannot be the basis for a 

conviction for continuous sexual abuse of a child in Texas. Lee v. State, No. PD0880-16, 2017 WL 4399151, at *2 (Tex. Crim. App. Oct. 4, 2017). Consequently, 

we do not consider or review any of the acts that allegedly occurred in Arizona, and

we limit our review to the evidence of acts of sexual abuse that occurred in Texas.

See id. L.D. provided graphic and detailed testimony of Appellant’s acts of sexual 

abuse that occurred in Texas. L.D. explained that Appellant forced her to perform 

oral sex on him and showed her a pornographic video, which she described in detail.
6

L.D. explained how she was forced to perform oral sex in the bathroom and testified 

that Appellant usually sexually abused her on Monday evenings while her mother 

was out bowling. The defense attacked L.D.’s credibility, and Appellant denied that 

he abused her or B.S. Other witnesses, such as Rebecca Smith and Lindsey Morris, 

thought L.D.’s accusations were credible. The jury was aware of the discrepancies 

in L.D.’s testimony, but it resolved the conflicting evidence in the State’s favor. We 

will not substitute our judgment for the jury’s verdict. Williams v. State, 235 S.W.3d 

742, 750 (Tex. Crim. App. 2007). After a review of the record, we hold that a

rational jury could have found beyond a reasonable doubt that Appellant committed 

the offense of continuous sexual abuse of a child. We overrule Appellant’s first 

issue.

B. Issue Two: The trial court did not err when it denied Appellant’s 

request for a jury charge on lesser included offenses because he 

denied any wrongdoing. 

In his second issue, Appellant argues that the trial court “arbitrarily increased 

the range of punishment” when it failed to include two lesser included offenses in 

the jury charge. Appellant argues that evidence “was elicited . . . which would 

support the inclusion of the lesser included offenses” that he requested. We apply 

the Aguilar/Rousseau test to determine whether an instruction on a lesser included

offense should be given to the jury. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. 

Crim. App. 2012); see Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.

1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). This test has 

two steps. Cavazos, 382 S.W.3d at 382.

The first step is to determine “if the proof necessary to establish [the elements 

of] the charged offense also includes the lesser offense.” Id. If this threshold is met, 

then the second step is for us to decide whether there is some evidence “in the record 

that would permit a jury rationally to find that if the defendant is guilty, he is guilty 
7

only of the lesser offense.” Rousseau, 855 S.W.2d at 673. The purpose of the lesserincluded-offense instruction is to avoid leaving jurors with two “equally distasteful” 

options: (1) acquit the defendant even though the jury believes he is guilty of the 

lesser included offense or (2) convict the defendant even though the jury does not 

believe he committed the charged offense. Eldred v. State, 578 S.W.2d 721, 723 

(Tex. Crim. App. [Panel Op.] 1979). 

To determine whether Appellant was entitled to the requested instructions, we 

must compare the statutory elements of continuous sexual abuse of a young child

with the statutory elements of aggravated sexual assault of a child and indecency 

with a child to determine whether “the proof for the offense charged includes the 

proof necessary to establish the lesser-included offense and [whether] there is some 

evidence in the record that would permit a jury rationally to find that if the defendant 

is guilty, he is guilty only of the lesser-included offense.” Hall v. State, 225 S.W.3d 

524, 536 (Tex. Crim. App. 2007) (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex.

Crim. App. 1994)).

Here, the first prong is satisfied. The offenses of aggravated sexual assault of 

a child and indecency with a child, as alleged in the indictment in the case before us, 

are lesser included offenses of the offense of continuous sexual abuse of a child

under Section 21.02 of the Penal Code. Soliz v. State, 353 S.W.3d 850, 854 (Tex.

Crim. App. 2011). Thus, we must determine whether there is some evidence in the 

record that would permit a rational jury to find that, if the defendant is guilty, he is 

guilty only of the lesser offense. Hall, 225 S.W.3d at 536. The “some evidence” 

requirement for a lesser included offense is not satisfied when the defendant simply 

denies the commission of any crime. Willis v. State, No. 07-11-0235-CR, 2012 WL 

2072839, at *1 (Tex. App.—Amarillo June 8, 2012, pet. ref’d) (mem. op., not 

designated for publication) (citing Bignall, 887 S.W.2d at 24). In this case, 

Appellant did not challenge whether specific instances of assault occurred, but rather
8

asserted that no inappropriate sexual conduct occurred. See Coleman v. State, 

No. 11-11-00039-CR, 2013 WL 779898, at *13 (Tex. App.—Eastland Feb. 28, 

2013, no pet.) (mem. op., not designated for publication). As a result, the lesser

offenses cannot be included as alternatives to the charge against Appellant of 

continuous sexual abuse of a child. See Hall, 225 S.W.3d at 535–36. We overrule 

Appellant’s second issue.

IV. Conclusion

We affirm the judgment of the trial court. 

 MIKE WILLSON

 JUSTICE 

November 30, 2017 

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.