James Kevin Pope v. State

Citation: Not availableDocket: 02-08-00237-CR

Court: Court of Appeals of Texas; October 22, 2009; Texas; State Appellate Court

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James Kevin Pope was convicted by a jury of forty counts of sexual assault of a child and three counts of sexual performance by a child, involving his three teenage daughters. The jury imposed life imprisonment and a $10,000 fine for each sexual assault count, along with twenty years’ confinement and a $10,000 fine for each performance count, with sentences ordered to run consecutively. Pope challenged the factual sufficiency of the evidence and the absence of a jury instruction. The court affirmed the trial court's judgments, finding the evidence factually sufficient. 

When assessing factual sufficiency, the court examines evidence neutrally, favoring neither party, and considers whether the supporting evidence is so weak that the verdict appears clearly wrong or unjust. It noted that conflicting evidence does not automatically warrant reversal unless the evidence overwhelmingly contradicts the verdict. The court emphasized that juries have the discretion to believe or disbelieve witnesses and that it would not substitute its judgment for the jury's unless a manifest injustice required correction. The court's deference to the jury's credibility assessments and conflict resolutions reinforces the defendant's right to a jury trial.

K.L.P. and K.M.P. were born on January 16, 1990, and K.O.P. on November 29, 1991. The family resided in Springtown, Texas, before relocating to Iowa. In spring 2005, Shelly, the girls' mother, expressed concern after K.M.P. indicated that Appellant was taking nude photos of the girls. When Shelly requested the family’s digital camera to check for such images, Appellant claimed he did it to test their obedience. In February 2006, Shelly was incarcerated for mail fraud, and Appellant and the daughters returned to Springtown in March 2006. After Shelly's release to a halfway house in May 2007, she rejoined the family by June 19, 2007.

In late 2007, K.O.P. reported to her mother that Appellant had suggested she consider having sex with him, which she refused. Shelly later discussed inappropriate behavior by Appellant with K.O.P. and subsequently took the girls to their maternal grandfather's home. Upon returning home, Shelly confronted Appellant, alleging he had sexual intercourse with K.L.P. and had made K.M.P. and K.O.P. perform oral sex. Appellant did not deny the accusations but expressed remorse and promised to seek counseling and avoid being alone with the girls. Shelly did not report the incidents to law enforcement or Child Protective Services (CPS).

Walter Smith, a friend of Appellant, testified that Appellant indicated the girls might accuse him of misconduct to protect their mother from prison. Appellant also made inappropriate comments regarding the girls' grooming and mentioned past inappropriate games played with them. Although allegations had previously been reported to Iowa’s child protection agency, the agency did not remove the children from the home. Following a conversation with Walter, Shelly packed Appellant's belongings but still did not contact authorities, though Walter and his girlfriend Laurie eventually did.

On February 15, 2008, before the Appellant's arrest, Investigator Robert Pawley and a CPS investigator interviewed the girls at their school. Following this, police, with Shelly's consent, searched the family home, seizing a digital camera and two computer towers, and later examined the camera's SD card. Pawley testified that the digital pictures confirmed his belief in the girls' sexual abuse claims. An arrest warrant was issued, and the Appellant was arrested in Amarillo later that month. During his detention, he claimed the girls were lying and made recorded jailhouse statements, suggesting consensual agreements with the girls regarding sexual acts. 

The daughters testified to numerous sexual offenses by the Appellant over a two-year span, primarily occurring in Parker County. They described a dinner table conversation where they agreed to take turns servicing him, culminating in a decision to service him nightly. Their testimonies showed inconsistencies. Psychologist Parnell Edward Ryan evaluated the girls and noted signs of anxiety and depression in K.L.P., associating them with sexual abuse. The evaluations indicated varying degrees of repression and recovery among the sisters. 

Evidence presented included calendars summarizing the girls' testimonies. Each indictment against the Appellant included a count of sexual performance by a child, alleging that he intentionally induced the girls to pose for lewd photographs. The prosecution focused on incidents dated May 18, 2006, for K.L.P. and K.M.P., and August 2, 2006, for K.O.P.

K.L.P. and K.M.P., both sixteen in April 2006, testified that the Appellant requested they take nude photographs of each other, engaging in sexual acts. K.L.P. identified State’s Exhibits 10 and 11 as photographs of herself and her sister, respectively, both showing breasts and genitals, dated 05/18/2006. K.O.P. testified that the Appellant also asked her to take "naughty" photographs of herself in early August 2006, with Exhibit 12 being one such photo taken in 2007, similar to those from 2006. K.O.P. confirmed she took nude pictures on three occasions, two when she was fifteen and one when she was sixteen, with K.L.P. taking pictures during one incident. K.O.P. expressed feeling pressured to comply with the Appellant's requests, stating she was scared not to. She noted that the Appellant had downloaded these photographs onto the family computer. 

The document details multiple counts against the Appellant, including allegations of digital penetration and penetration of the complainants’ mouths with his sexual organ. Specifically, K.L.P.'s indictment includes counts for oral and digital penetration, with the prosecutor focusing on specific dates for these offenses, including June, July, August, and November of 2006. K.L.P. testified to performing oral sex and experiencing digital penetration by the Appellant during this timeframe, stating these acts occurred weekly from June through December 2006, occasionally alternating with anal sex. A calendar supported the dates cited by the State, except for one count, which was clarified during closing arguments regarding a four-way incident on November 27, 2006.

K.L.P. testified about a four-way sexual encounter occurring after Thanksgiving but did not confirm whether she performed oral sex on Appellant. She stated that they collectively agreed to avoid such encounters in the future. K.O.P. testified to two four-way encounters in November, asserting that all girls engaged in oral sex with Appellant during these events. K.M.P. recalled at least two four-ways, with conflicting timelines regarding her seventeenth birthday. Her testimony did not include K.L.P. performing oral sex on Appellant, yet the jury could combine K.L.P.’s timing testimony with K.O.P.’s claims to support a conviction for the counts involving K.L.P. 

Regarding K.M.P., the indictment included four counts for oral sex and four for digital penetration by Appellant. The prosecution focused on incidents alleged to have occurred between June and December 2006. K.M.P. initially resisted Appellant's advances but later agreed to give him a "hand job." She reported that Appellant digitally penetrated her and ejaculated on her stomach during their first sexual encounter, which occurred in late June 2006. Following a meeting in July, K.M.P. performed a "hand job" and experienced weekly digital penetration until mid-August, when Appellant pressured her to try oral sex. After initially refusing, K.M.P. eventually performed oral sex on Appellant while he digitally penetrated her, continuing this pattern weekly until mid-September 2006.

In mid-September 2006, K.M.P. testified about a schedule involving sexual acts with their father, occurring daily in rotation among the girls. She recalled two occasions of "three-ways" involving herself, K.L.P., and Appellant, with one happening before Christmas and another after the twins turned seventeen, marking it outside the indicted timeframe. K.M.P. confirmed that during the first incident in early December, she performed oral sex on Appellant, who also digitally penetrated her. K.L.P. corroborated that a three-way involving all three girls occurred in late September or early October 2006, where both girls performed oral sex on Appellant.

K.M.P. mentioned at least two "four-ways," expressing uncertainty about the timing relative to her birthday. She stated that in one encounter, she performed oral sex on Appellant while he digitally penetrated her. K.L.P. testified that during a November four-way, Appellant performed oral sex on K.M.P. and digitally penetrated her, but did not mention K.M.P. performing oral sex on Appellant. K.O.P. reported two four-ways in early and mid-November 2006, where all girls performed oral sex on Appellant, but there was no digital penetration.

The evidence from the 2006 calendar and overlays supports the State's case for multiple counts in the indictment related to K.M.P., particularly concerning oral and digital penetration. K.O.P.'s testimony included four counts of oral penetration and two counts of digital penetration by Appellant, with specific dates provided for each incident. K.O.P. described the first occurrence with Appellant occurring in late May 2006, involving both oral and digital acts, which continued frequently until mid-July. She also affirmed participation in a four-way in early November, supported by K.L.P.'s testimony. The evidence presented is deemed factually sufficient to uphold the verdicts against Appellant for the alleged penetrative acts involving both K.M.P. and K.O.P.

K.O.P. provided testimony indicating that from November 2006 until June 2007, she and the Appellant engaged in oral sex once or twice a week, a pattern that resumed in August 2007 and continued until November 2007. Supporting evidence includes the 2006 and 2007 calendars and K.O.P.'s overlays, which validate the timeline presented by the State. The court determined that there is sufficient factual evidence to uphold the convictions against the Appellant for four counts of oral penetration of K.O.P.'s mouth and two counts of finger penetration of her sexual organ. 

Regarding K.L.P. and K.M.P., the indictments for K.L.P. include three counts of oral contact with the Appellant's mouth, specifically occurring on October 16, November 1, and November 27, 2006. The State also alleges that K.L.P.'s sexual organ contacted K.M.P.'s mouth on several occasions, with the prosecutor referencing incidents from September 25, November 27, and November 1, 2006. K.L.P. testified that the Appellant initiated oral contact with her genitals in mid-October 2006, with further acts occurring in November and December of that year. K.O.P. corroborated that during a four-way encounter in November 2006, the Appellant performed oral sex on each daughter, although K.L.P. and K.M.P. did not confirm any oral acts involving K.L.P. during that encounter. Both K.L.P. and K.M.P. recounted a three-way incident in late September or early October 2006, where K.M.P. performed oral sex on K.L.P. The jury has discretion to weigh witness credibility, and the court concluded that the evidence was sufficient to support the six counts against the Appellant associated with K.L.P.'s allegations.

The indictment against the Appellant regarding K.M.P. includes three counts (V, IX, and XIII) for causing her sexual organ to contact his mouth, based on incidents on December 4, 2006, and November 27, 2006, during three-way and four-way events. Additional counts (VI, XIV, and XV) allege that K.M.P.'s sexual organ contacted K.L.P.'s and K.O.P.'s mouths, with incidents also occurring around December 4, 2006, and November 27, 2006. K.M.P. testified about her first oral sexual encounter with the Appellant and K.L.P. before the three-way and four-way events, which she documented on a 2006 calendar. Witness testimonies indicated that during the four-way, multiple parties engaged in oral sex. The jury was tasked with evaluating the credibility of the witnesses, and it was determined that the evidence was sufficient to support the Appellant's convictions on these counts.

Regarding K.O.P., the indictment includes three counts (V, IX, and XI) for causing her sexual organ to contact his mouth, based on alleged conduct on November 20, 2006, September 3, 2007, and November 19, 2007. Additional counts (VI and VII) allege that K.O.P.'s sexual organ contacted K.M.P.'s and K.L.P.'s mouths during the four-way event on November 27, 2006. K.L.P. and K.M.P. testified that they performed oral sex on K.O.P. during the four-way, while K.O.P. denied receiving oral sex from her sisters. K.O.P. reported engaging in simultaneous oral sex with the Appellant regularly from late 2006 until late 2007. The evidence from calendars and overlays supported the prosecution's timeline, and it was found factually sufficient to uphold the Appellant's convictions on these counts.

Additionally, the Appellant was charged with a count of penetrating K.L.P.'s sexual organ with his own, alleged to have occurred during the four-way on November 27, 2006, which K.L.P. confirmed in her testimony.

K.L.P. testified that her sisters were aware she had previously engaged in vaginal intercourse with the Appellant prior to a four-way encounter. She stated that her first sexual encounter with the Appellant occurred after a three-way with K.O.P. at the end of October or beginning of November 2006. Additionally, she indicated that the third instance of vaginal intercourse with the Appellant took place on Christmas night 2006 in Amarillo, which was not the basis for any indictment in Parker County. K.O.P. corroborated that K.L.P. and the Appellant had penile-vaginal intercourse during the four-way, which occurred in mid-November 2006. The evidence, including a 2006 calendar and K.L.P.'s overlays, supported the State's case. The court found the evidence factually sufficient to uphold the Appellant's conviction for the sexual act against K.L.P. 

The State elected specific acts to rely upon after the evidence was presented, and the jury charge clarified that the defendant was only on trial for the charges outlined in the indictment. It instructed the jury not to consider any other acts unless they found beyond a reasonable doubt that those acts occurred, which could only be used to assess the defendant's state of mind or the relationship between him and K.L.P. The prosecutors utilized "cheat sheets" and various exhibits to guide the jury through the allegations in their closing arguments, emphasizing that the State needed to prove the acts occurred prior to the indictment, without the necessity of establishing specific dates for each charge.

In this legal context, the prosecution is allowed to present all relevant sexual acts between the defendant and the victim, but must specify particular acts to support the indictment for conviction. While numerous acts may be referenced, the prosecution must highlight specific incidents for the jury's consideration. The jury can take into account other acts if they are deemed relevant to factors such as the state of mind, intent, or motive, provided that these are proven beyond a reasonable doubt.

The Appellant claims that the trial court erred in denying his motion for the State to elect which acts to prosecute, arguing that this lack of specificity led to potential confusion during jury deliberations. Although the trial court initially denied this motion, it was later granted, allowing the prosecutor to clarify the dates associated with each count.

Additionally, the Appellant argues that the jury charge was flawed because it did not instruct jurors to limit their consideration to the elected acts for conviction. The State conceded this error. Such an omission necessitates a reversal only if it harms the defendant's rights, which depends on an evaluation of the overall jury charge, evidence presented, and arguments made during the trial. The court determines whether the error was harmful based on the entirety of the trial record.

The trial court's omission of an election instruction was deemed harmless due to the substantial evidence presented, including complainants' testimonies and the 2006 and 2007 calendars with overlays reviewed by the jury. The State effectively detailed its reliance on specific dates and acts during its closing argument. Consequently, all points raised by the Appellant were overruled, leading to the affirmation of the trial court's judgment. The decision was delivered by a panel consisting of Judges Dauphinot, Livingston, and Gardner, and is not intended for publication.