James Kevin Pope v. State

Citation: Not availableDocket: 02-08-00235-CR

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

Original Court Document: View Document

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James Kevin Pope was convicted of forty counts of sexual assault of a child and three counts of sexual performance by a child, with the jury imposing life imprisonment and a $10,000 fine for each assault count, and twenty years' confinement with a $10,000 fine for each performance count. The sentences were ordered to be served consecutively. Pope challenged the factual sufficiency of the evidence, arguing inconsistencies in his daughters' testimonies. The court applied a standard of review for factual sufficiency, assessing whether the evidence, while legally sufficient, was so weak or outweighed by conflicting evidence that the jury's verdict was manifestly unjust. The court affirmed the trial court's judgments, finding the evidence factually sufficient and ruling that any error in jury instruction was harmless. The court emphasized the importance of deferring to the jury's credibility determinations and noted that it cannot substitute its judgment for that of the jury unless a clear injustice is evident.

K.L.P. and K.M.P. were born on January 16, 1990, and K.O.P. on November 29, 1991, with the family residing in Springtown, Texas, before moving to Iowa. In spring 2005, Shelly, the mother and wife of Appellant, became alarmed after K.M.P. disclosed that Appellant was taking nude photographs of the girls. Upon requesting the family camera to check for inappropriate images, Appellant claimed he only did it to test their obedience. In February 2006, Shelly was incarcerated for mail fraud, leading Appellant and the daughters to return to Springtown in March 2006. Shelly moved to a halfway house in May 2007 and rejoined the family in June.

In late 2007, K.O.P. disclosed to her mother that Appellant had suggested she consider having sex with him after she got in trouble at school. Shelly later had a conversation with K.O.P. about Appellant's inappropriate behavior, which led her to discuss the matter with K.L.P. and K.M.P. Following these conversations, Shelly confronted Appellant, accusing him of sexual misconduct with K.L.P. and oral sex with K.M.P. and K.O.P. Appellant expressed remorse and promised never to be alone with the girls again, pledging to seek counseling. Despite the serious nature of the allegations, Shelly did not report the incidents to law enforcement or child protective services.

Appellant's friend, Walter Smith, testified that in February 2008, Appellant expressed concern that the girls would accuse him of abuse to protect their mother from imprisonment. Appellant also made inappropriate comments about the girls and previously engaged in questionable activities with them while they lived in Iowa. Although a report was made to Iowa's child protection agency concerning the girls, no action was taken to remove them from the home. Following discussions with Walter, Shelly packed Appellant's belongings but still did not report the situation to authorities, although Walter and his girlfriend did.

On February 15, 2008, prior to the Appellant's arrest, investigators from the sheriff's office and Child Protective Services (CPS) interviewed the Appellant's daughters at school after receiving a report of abuse. With the consent of Shelly, the Appellant's partner, law enforcement searched their home, seizing a digital camera and two computer towers, followed by a search of the camera's SD card the subsequent week. Investigator Robert Pawley testified that the digital images confirmed his suspicions of sexual abuse, aligning with the girls' statements. An arrest warrant was issued, leading to the Appellant's arrest in Amarillo in late February 2008. During jail conversations with his mother, the Appellant claimed the girls were liars and asserted that their interactions were consensual. He later admitted to incriminating himself in earlier calls. The daughters testified to numerous sexual offenses by the Appellant over two years, discussing an agreement among themselves to alternately engage in sexual acts with him. 

Psychologist Parnell Edward Ryan evaluated the daughters and noted symptoms of anxiety, depression, and repressed experiences consistent with sexual abuse. He indicated that K.L.P. showed signs leaning towards recovery, while K.M.P. exhibited more repression. K.O.P. was assessed to be intermediate between her sisters. Evidence included calendars summarizing the testimonies of the complainants. Each indictment against the Appellant included a count of sexual performance by a child, alleging he intentionally induced the girls to pose for lewd photographs, with specific dates tied to the offenses concerning K.L.P., K.M.P., and K.O.P.

K.L.P. and K.M.P., both sixteen in April 2006, testified that Appellant instructed them to take nude photographs of each other engaging in sexual acts. K.L.P. identified State's Exhibits 10 and 11 as these photographs, which displayed their breasts and genitals, dated A05/18/2006. K.O.P. later testified that in August 2006, Appellant requested she take "naughty" pictures of herself, resulting in State's Exhibit 12, showing her breasts and genitalia. K.O.P. confirmed she took nude photographs on three occasions, two when she was fifteen and one when she was sixteen, with both K.L.P. and K.O.P. involved in taking pictures at different times. She felt pressured to comply with Appellant's requests, fearing repercussions for refusal, and noted that Appellant had downloaded the images onto the family computer. 

The indictments against Appellant include multiple counts for oral and digital penetration of K.L.P. and K.M.P. Specifically, K.L.P.'s indictment includes four counts for the penetration of her mouth and four for digital penetration, with the prosecutor focusing on incidents occurring between June and November 2006. K.L.P. testified that she engaged in oral sex with Appellant in June 2006, during which he digitally penetrated her, a pattern that continued weekly until December 2006.

From late August 2006, K.L.P. clarified her testimony regarding sexual encounters with the Appellant, indicating they alternated between anal and oral sex. The evidence, including a 2006 calendar, supports the dates outlined by the State for all counts except Count XI. For Count XI, the prosecutor argued that K.L.P. testified about performing oral sex on the Appellant during a four-way incident on November 27, 2006. While K.L.P. confirmed that the four-way occurred after Thanksgiving but before December, she did not explicitly testify about performing oral sex during that event. K.O.P. and K.M.P. provided additional testimony, with K.O.P. recalling two four-ways where all girls performed oral sex on the Appellant. K.M.P. remembered at least two four-ways, one around her seventeenth birthday, but did not include K.L.P. in her accounts of oral sex with the Appellant. The jury could reasonably rely on K.L.P.'s timing of the four-way combined with K.O.P.'s testimony to convict on Count XI. 

Concerning K.M.P., the indictment included four counts each for oral and digital penetration by the Appellant. The prosecutor focused on incidents occurring on specific dates, including August 14, December 4, August 21, and November 27, 2006. K.M.P. initially refused to perform oral sex when requested by the Appellant in June 2006. After several weeks, she agreed to perform a hand job instead. K.M.P. testified that during an encounter in late June, the Appellant digitally penetrated her, and his ejaculate landed on her stomach. Following a scheduled arrangement for sexual acts, K.M.P. was subjected to weekly digital penetration and hand jobs until mid-August 2006, when the Appellant suggested switching to oral sex, which she refused, despite his insistence to try it.

K.M.P. engaged in sexual acts with the Appellant, including performing oral sex and digital penetration, starting with a specific incident where he ejaculated in her mouth. This interaction occurred weekly until mid-September 2006, when a new arrangement was made for the girls to perform sexual acts with their father on a rotating schedule. K.M.P. recounted two three-way encounters with the Appellant and K.L.P., occurring in December 2006, which were not part of the indicted conduct. She confirmed the first three-way event took place in early December 2006, involving oral sex and digital penetration by the Appellant. K.L.P. corroborated the occurrence of a three-way in late September or early October 2006, where both girls performed oral sex on the Appellant. K.M.P. also recalled at least two four-way incidents, with conflicting details about their timing relative to her seventeenth birthday. During one four-way, both K.M.P. and K.L.P. testified that Appellant performed oral sex on K.M.P. and digitally penetrated her. K.O.P. described two four-ways in early and mid-November 2006, noting that all girls performed oral sex on the Appellant without digital penetration. Testimonies from K.M.P., K.L.P., and K.O.P. supported the State's case for multiple counts of sexual offenses against K.M.P. and K.O.P., with the evidence deemed sufficient to uphold the verdicts related to the Appellant's acts of oral and digital penetration. The indictment against K.O.P. included four counts for oral penetration and two for digital penetration, with specific dates provided for each count.

K.O.P. provided testimony indicating that the first sexual act with the Appellant after moving back to Texas occurred in May 2006, involving oral sex and digital penetration. This activity reportedly happened once or twice weekly until mid-July 2006. K.O.P. recounted two four-way sexual encounters in November 2006, during which all three girls performed oral sex on the Appellant. K.L.P. corroborated K.O.P.’s account of the oral sex during the second four-way. Following this, K.O.P. testified that she and the Appellant engaged in mutual oral sex once or twice a week from early to mid-November 2006 until her mother's return in June 2007, with similar behavior resuming by August 2007 and continuing through November 2007. Evidence, including calendars and overlays, supports the timeline of events as presented by the State. 

The legal document outlines multiple counts in the indictments against the Appellant concerning sexual contact with K.O.P., K.L.P., and K.M.P. Specifically, the indictment involving K.L.P. includes three counts alleging that the Appellant caused her sexual organs to contact his mouth on specific dates in October and November 2006, as well as counts alleging contact involving K.M.P. and K.O.P.

K.L.P. testified about multiple sexual encounters with the Appellant in 2006, including instances of mutual oral sex occurring in mid-October, November, and December, with no one else present. K.O.P. described a separate occasion where the Appellant performed oral sex on both daughters during a four-way event in November, although neither K.L.P. nor K.M.P. claimed that Appellant performed oral sex on K.L.P. during that encounter. K.L.P. also recounted a three-way interaction involving herself, the Appellant, and K.M.P., where K.M.P. performed oral sex on K.L.P. and vice versa. In early November, another three-way involving K.L.P., K.O.P., and the Appellant occurred, during which both girls engaged in oral sex. K.O.P. denied performing or receiving oral sex from her sisters.

The indictment against Appellant regarding K.M.P. includes several counts alleging that he caused her sexual organ to contact his mouth on specific dates related to three-way and four-way encounters. K.M.P. recalled the first incident of mutual oral sex occurring prior to the three-way and four-way events, as chronicled in her 2006 calendar overlay. She confirmed that during the first three-way, Appellant performed oral sex on her, and K.L.P. also engaged in oral sex with her. During the four-way, K.M.P. testified that the Appellant and both sisters performed oral sex on her, while K.O.P. denied any such actions.

The jury was tasked with determining the credibility of the witnesses and resolving any conflicting testimonies. The evidence presented was deemed factually sufficient to uphold the Appellant’s convictions on the relevant counts.

The indictment against Appellant includes multiple counts related to K.O.P., specifically Counts V, IX, and XI, which allege that Appellant caused K.O.P.'s sexual organ to contact his mouth on three separate occasions in 2006 and 2007. Additional counts, VI and VII, allege Appellant caused K.O.P.'s sexual organ to contact K.M.P.'s and K.L.P.'s mouths during a four-way encounter on November 27, 2006. K.M.P. and K.L.P. testified that they performed oral sex on K.O.P. during this event, while K.O.P. denied receiving oral sex from either sister. K.O.P. claimed that from early to mid-November 2006 until June 2007, she and Appellant engaged in mutual oral sex once or twice a week, with similar behavior resuming by August 2007 and continuing through late November 2007. Evidence including 2006 and 2007 calendars supported the dates selected by the State.

Additionally, Appellant was charged with penetrating K.L.P.'s sexual organ with his own, with the allegation corresponding to the November 27, 2006, four-way. K.L.P. testified to this penetration and acknowledged previous sexual encounters with Appellant, including vaginal intercourse after a three-way encounter with K.O.P. K.O.P. also confirmed that Appellant penetrated K.L.P. during the four-way. The evidence was determined to be factually sufficient to support convictions for all related counts.

The State chose which acts to rely on after all evidence was presented, but the jury charge did not include specific instructions regarding these elections. It did clarify that the trial was based solely on the charges in the indictment and that any evidence of other acts could only be considered under specific conditions, such as to understand the defendant's state of mind or the relationship with the child, and not for any other purposes.

Prosecutors utilized "cheat sheets" and various exhibits during their closing argument to systematically address each election-related allegation in the indictment. They emphasized that while the indictment requires a date, proving that the alleged acts occurred before the indictment suffices for conviction, without the necessity of pinpointing specific dates. The law permits the consideration of all relevant acts between the defendant and the victim to establish intent, state of mind, and other factors. 

The Appellant raised two main points of contention: first, the trial court's denial of his motion for the State to elect which specific acts to prosecute, claiming this could lead to a “stop action” prosecution; and second, the court’s refusal to limit jury consideration to acts tied to specific dates for each count. The court denied the first request but later granted the second, allowing the prosecutor to read dates into the record for each count. Consequently, the appellate court overruled the Appellant's complaints regarding the motions as inadequately briefed, particularly noting the trial court's eventual compliance with the request for specificity regarding dates.

The trial court's failure to provide a jury instruction limiting the jury's consideration to the elected act for conviction, as conceded by the State, constitutes an error. However, this error is deemed harmless. A jury must be instructed to consider only the specific act elected by the State when assessing a defendant's guilt, with any other acts considered only for limited purposes. For preserved errors, reversal is warranted only if the error results in harm to the defendant. The assessment of harm involves examining the entire jury charge, evidence presented, contested issues, and arguments made during the trial. In this case, given the substantial evidence available, including the complainants' testimonies and detailed timelines presented during closing arguments, the omission of the election instruction did not harm the defendant. Therefore, the appellate court overruled the appellant's first two points.

All points raised by the Appellant have been overruled, leading to the affirmation of the trial court's judgments. The decision is rendered by a panel consisting of Justices Dauphinot, Livingston, and Gardner. The ruling is designated as "DO NOT PUBLISH" under Texas Rule of Appellate Procedure 47.2(b) and was delivered on October 22, 2009. Various cases and statutes, including references to the Texas Penal Code and specific case precedents, support the court's conclusions throughout the document.