Theodore Menelly, Appellant v. The State of Texas State (2015)

MEMORANDUM OPINION 1

Appellant Theodore Menelly appeals from his conviction for indecency with a child and his eight-year sentence.   We affirm.

I. BACKGROUND

A. Factual Background

Father ² and Menelly, Father's uncle, had never met until Father sought out Menelly in 2010.   Menelly frequently participated in family activities with Father, Mother, and their two children, M. and C., and helped with improvement projects around Father and Mother's home.   Menelly was physically demonstrative with M. and C., “roughhouse[ing]” with them in the pool and asking them to hug him.   By all accounts, M. and C. loved Menelly.

On Saturday, December 1, 2012, Menelly helped Father remodel a bathroom in Father and Mother's home and stayed the night.   The next morning—Sunday, December 2, 2012—M., who was ten years old, woke up and went down to the dining room where Menelly was working on the computer.   The dining room was in a secluded part of the house that could be seen from the front doorway.   Other than Menelly and M., no one else was awake at the time.   Menelly “reached his arms out to give [M.] a hug,” and M. walked over and sat on Menelly's lap, facing forward.   Menelly reached around to put his hand underneath M.'s shirt and “felt around on [her] breast.   And then once he found one, he started squeezing one.”   Menelly began “moaning and breathing a little heavier than usual.”   Although Menelly routinely asked for hugs in the past, this hug was different and scared her because she knew it was wrong.   M. pulled away, but Menelly held her back.   The second time M. tried to get away, Menelly let her go, and M. left the dining room.   M. believed if she had not pulled away, Menelly would have continued to touch her breast.

Menelly left the home that evening, and M. told Father she did not like the way Menelly hugged her.   When Father asked for an explanation, M. recounted what Menelly had done that morning.   The next day—Monday, December 3, 2012—Father asked M. to tell Mother what had happened.   M. recounted the same details and demonstrated on Father what Menelly had done.   Father and Mother reported the incident to the police and filed a complaint.   Detective Michelle Grigg began investigating the complaint and interviewed Menelly.   Griggs stated that Menelly was defensive and evasive.   At the end of the interview, Menelly “started to tear up and get emotional” and then he called Grigg “a filthy bitch” and said he “hated [her] freaking guts.”   Grigg also witnessed M.'s forensic interview and noted that she was able to give details about the incident.

B. Procedural Background

A grand jury indicted Menelly for indecency with a child.   See Tex. Penal Code Ann. § 21.11 (West 2011).   A jury was seated, and the guilt-innocence phase of trial began on July 14, 2014.   On July 15, 2014, and after all the evidence regarding the guilt-innocence phase concluded, the State and Menelly rested, and the trial court recessed the trial until the next morning.   The jury was not charged, and counsel had not made their closing arguments before the recess.   The next morning, the trial court announced to counsel that a juror's young daughter had been admitted to the hospital the night before after suffering a “life-threatening” stroke.   She had required emergency surgery that night to remove a blood clot and was still in intensive care.   The trial court told counsel that the juror could not attend the trial that day, could not say when she would be able to return, and thus could not continue to serve on the jury.   The State requested that the trial continue with eleven jurors because one juror was disabled, while Menelly requested a mistrial because the juror was not disabled and because there was no corroborating evidence of the daughter's condition other than the juror's earlier phone call.   The trial court denied the motion for mistrial and ordered the trial to proceed with eleven jurors.

The jury found Menelly guilty, and all eleven jurors signed the verdict form.   The trial court then charged the jury on punishment, and the jury assessed Menelly's punishment at eight years' confinement.   Again, each of the eleven jurors signed the verdict form.   Menelly now appeals and argues that the evidence was insufficient to support his conviction and that the trial court abused its discretion by allowing the trial to continue with fewer than twelve jurors.

I. SUFFICIENCY OF THE EVIDENCE

In his first point, Menelly argues that the evidence was insufficient to show he had the requisite intent—that he had the intent to arouse or gratify the sexual desire of any person.   See id. § 21.11(a)(2).

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979);  Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014).   The trier of fact is the sole judge of the weight and credibility of the evidence.   See Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979);  Dobbs, 434 S.W.3d at 170.   Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder.  Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010).   Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict.  Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App.2011);  see Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013).

In determining the sufficiency of the evidence to show Menelly's intent, and faced with a record that supports conflicting inferences, we “must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.”  Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991).   Therefore, we may infer specific intent from Menelly's conduct, his remarks, and the surrounding circumstances.   See Bazanes v. State, 310 S.W.3d 32, 37, 40 (Tex.App.—Fort Worth 2010, pet. ref'd).   Further, M.'s testimony standing alone is sufficient to support a conviction for indecency with a child.   See Tex.Code Crim. Proc. Ann. art. 38.07(a) (West Supp.2014).   M. testified that Menelly put his hand under her shirt, touched and squeezed her breast, moaned and started breathing heavily, and restrained M. when she tried to get away.   M. knew this hug was different from Menelly's prior hugs.   Shortly after the incident, M. told Mother and Father about the incident and never wavered from the details of her accusation.   Even though Menelly argues there were conflicting inferences that could be drawn from this evidence, we may not second-guess the fact-finder's determination.   See id. art. 38.04.   We hold that M.'s testimony was sufficient to prove beyond a reasonable doubt the element of intent.   See Vanover v. State, No. 06–13–00256–CR, 2014 WL 4351416, at *4 (Tex.App.—Texarkana Sept. 3, 2014, pet. ref'd) (mem. op., not designated for publication);  Bazanes, 310 S.W.3d at 40–41.   We overrule Menelly's first point.

II. DISABLED JUROR

In his second point, Menelly argues that the trial court erred by allowing the trial to proceed with eleven jurors without independently verifying the juror's claimed emergency.³  “Not less than twelve jurors can render and return a verdict in a felony case.”  Tex.Code Crim. Proc. Ann. art. 36.29(a).   But if a juror “becomes disabled” before the charge of the court is read to the jury, the remaining jurors may render a verdict.  Id. The parties' consent to proceeding with fewer than twelve jurors is not required in the case of a disabled juror.   See Hill v. State, 90 S.W.3d 308, 315 (Tex.Crim.App.2002).   Whether a juror has become disabled is a matter left to the trial court's discretion, but that discretion is limited to situations involving “physical illness, mental condition, or emotional state which hinders one's ability to perform one's duties as a juror.”  Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App.1990);  see also Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.1999).

Here, the juror informed the trial court that her twenty-one-year-old daughter had suffered a stroke the night before (which was the night before the trial court read its charge to the jury), had required emergency surgery to remove a blood clot, and remained in critical condition at a hospital.   The juror understandably could not tell the trial court when she would be able to return to the trial.   Similar circumstances previously have justified the exercise of a trial court's discretion to declare the affected juror disabled under section 36.29 and to proceed with eleven jurors.   See, e.g., Clark v. State, 500 S.W.2d 107, 108–09 (Tex.Crim.App.1973) (affirming trial court's conclusion juror was too emotionally upset to continue with trial after juror's father-in-law died and juror needed to travel out of state to be with his wife);  Brown v. State, No. 10–07–00279–CR, 2010 WL 138331, at *5–6 (Tex.App.—Waco Jan. 13, 2010, pet. dism'd, untimely filed) (mem. op., not designated for publication) (upholding disability finding where juror's wife had surgery and juror was only caretaker);  Brown v. State, No. 12–01–00117–CR, 2002 WL 1338611, at *9 (Tex.App.—Tyler June 18, 2002, pet. ref'd) (not designated for publication) (holding trial court did not abuse its discretion by declaring juror disabled after juror's mother had a heart attack during trial and required surgery);  Wells v. State, 762 S.W.2d 673, 674–75 (Tex.App.—Texarkana 1988, pet. ref'd) (concluding “distraught” juror was disabled after a death in juror's family).   None of these cases required independent verification by the trial court of the claimed disability.   See Brown, 2010 WL 138331, at *5–6 (after evidence of juror's disability reported to trial court by court coordinator, refusing to require trial court “to explore the availability of home health services” after juror's wife had surgery and juror was sole caregiver).

Menelly argues that independent verification is an absolute prerequisite to a finding of disability based on Ricketts v. State, 89 S.W.3d 312 (Tex.App.—Fort Worth 2002, pet. ref'd) (op. on PDR).  In Ricketts, we held that the trial court did not abuse its discretion by determining a juror was disabled under article 36.29 when her father died the night after the jury was seated and sworn.  Id. at 318.   We noted that the trial court “verified the death of [the juror's] father and had the benefit of speaking with her on the phone to judge her demeanor.”  Id. As the State points out, we did not hold that independent verification was required before a juror could be found disabled.   We considered this fact only as one of many supporting the trial court's discretionary disability determination.  Id. at 318–19.   The trial court did not abuse its discretion, and we overrule Menelly's second point.

III. CONCLUSION

Having overruled Menelly's two points, we affirm the trial court's judgment.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   We use aliases for the complainant, her father, and her mother.   See Tex.R.App. P. 9.10(a).

3.   At trial, Menelly's counsel briefly argued that there was not “any outside extrinsic proof of [the juror's daughter's] disability.”   Counsel focused his argument on his position that the juror was not disabled under article 36.29 because of her daughter's medical condition.  Tex.Code Crim. Proc. Ann. art. 36.29 (West Supp.2014).

LEE GABRIEL, JUSTICE