Michelle Ann Thompson v. The State of Texas--Appeal from 54th District Court of McLennan County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-01-00372-CR

Case Date: 12/11/2002

Plaintiff: Michelle Ann Thompson

Defendant: The State of Texas--Appeal from 54th District Court of McLennan County

Preview:Michelle Ann Thompson v. The State of Texas--Appeal
from 54th District Court of McLennan County
Michelle Ann Thompson v. State /**/
IN THE
TENTH COURT OF APPEALS
No. 10-01-372-CR
MICHELLE ANN THOMPSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 2000-882-C
MEMORANDUM OPINION
A jury found Michelle Ann Thompson guilty of aggravated sexual assault and assessed her punishment at fifty years in
prison and a ten thousand dollar fine. Michelle complains in her appeal that the evidence is legally and factually
insufficient to establish her intent to promote or assist her husband s aggravated sexual assault of J.W., Michelle s ten
year old daughter. We will affirm.
LAW OF PARTIES
Although the aggravated sexual assault of which Michelle was found guilty arose from Todd Thompson s oral sex with
J.W., Michelle may be found guilty under the law of parties. Tex. Pen. Code Ann. 7.02 (Vernon 1994). Under the law
of parties:
A person is criminally responsible for an offense committed by the conduct of another if:
(2) acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense; or
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(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its
commission, he fails to make a reasonable effort to prevent commission of the offense.
Id. at 7.02(a) (2), (3).
Physical presence alone at the scene of the crime is not enough to make one a party. See Miles v. State, 918 S.W.2d
511, 515 (Tex. Crim. App. 1996). But, [e]vidence is sufficient to convict under the law of parties where the defendant
is physically present at the commission of the offense and encourages its commission by words or other agreement.
Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim.
App. 1985), cert. denied, 476 U.S. 1101, 90 L. Ed. 2d 352, 106 S. Ct. 1942 (1986); Green v. State, 839 S.W.2d 935,
943 (Tex. App. Waco 1993, pet. denied).
To determine whether the defendant is a party to the crime, the court may look to events occurring before, during, and
after the commission of the offense. Ransom, 920 S.W.2d at 302. The court may also rely on actions of the defendant
which show an understanding and common design to do the prohibited act. Id. And circumstantial evidence may be
sufficient to prove the defendant s status as a party. Id.LEGAL SUFFICIENCYA "legal sufficiency of the evidence
review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912,
917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal-
sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Id.; see also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in
original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).
At a separate trial, Todd Thompson, Michelle s husband, was found guilty of the aggravated sexual assault of J.W.
During Michelle s trial, J.W. testified that Todd sexually assaulted her multiple times; including times when her
mother would watch or participate. One such assault occurred when they lived in Bruceville and J.W. came for a visit.
J.W. was in bed between Todd and her mom when Todd rubbed J.W. s private parts under her clothes. J.W. saw her
mom watching them.
Another assault occurred when they lived on Scott Circle. J.W. testified that Todd came and got J.W. out of her bed
and took her to bed with him and her mom. At first, while J.W. was laying in bed beside them, Todd was on top of her
mom moving up and down. Then, when her mom was on top of Todd, he told J.W. to take off her clothes and sit on
his head. J.W. only took off her panties and straddled Todd s head while on her knees. Todd s head was between her
legs. Todd licked her private parts where she goes number one for a couple of minutes. J.W. s mom would sometimes
move up and down and sometimes she would stop and look at J.W. After it stopped, J.W. laid down on the bed with
Todd and her mom.
Michelle testified that she and Todd had sex when J.W. was in bed with them approximately twice. She would tell
Todd no, but he would keep on and on at her, and she would just finally give in.
Michelle also testified regarding the assault J.W. described as happening when they lived on Scott Circle. Michelle
stated that she and Todd were in bed. J.W. knocked on the door. Michelle told Todd not to let J.W. in and they argued
about it. Michelle then told Todd he could let J.W. in. J.W. got in bed with her mom and Todd and they all went to
sleep. Todd woke Michelle wanting to have sex with her. Michelle had her back to Todd and J.W. was in front of
Michelle. Todd and Michelle were having sex when Todd reached over and touched J.W. Michelle testified she does
not know where Todd touched J.W., just that he touched her while they were having sex.
Michelle testified to her knowledge of multiple sexual assaults of J.W. by Todd and to her attempts to increase the
amount of visitation J.W. had with Todd and Michelle despite her knowledge of the abuse. In her third statement to
police, Michelle wrote: I know it is my fault that I didn t protect her from him doing the things he was doing to her.
Officer Abdon Rodriquez testified that Michelle became a suspect in the aggravated sexual assault of her daughter
because of information he received from Marvin Walizer, J.W. s biological father. Walizer reported to Officer
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Rodriquez that Michelle told some friends she gave Todd a father s day present, which consisted of Michelle and J.W.
having sex with Todd at the same time.
Additional witnesses also testified to facts concerning Michelle s involvement with the aggravated sexual assault of her
daughter. Lezlie Paris, Todd s sister, testified to statements that both Michelle and Todd made to her regarding assaults
of J.W. B.W., Michelle s son, testified regarding the time he saw Todd and J.W. enter and leave the shower together
and to a time he and Michelle found Todd and J.W. asleep together on the couch. Todd was laying on the couch with
just his boxer shorts on and J.W. was naked and laying on top of Todd.
Veronica Terrell, a Child Protective Services Investigator, testified to statements Michelle made to Terrell concerning
the aggravated sexual assault of J.W. Terrell testified Michelle told her Michelle and Todd were having sex, J.W.
knocked on the door, Todd got up and let J.W. in the bedroom, and Todd made J.W. take her clothes off during the
course of the events.
In this case, the essential element of the crime of which Michelle complains is her intent to promote or assist in the
aggravated sexual assault of her daughter. After a careful review of the record viewed in the light most favorable to the
verdict, we find the evidence is sufficient for a rational jury to find beyond a reasonable doubt that Michelle intended
to assist or promote the commission of the aggravated assault on J.W. We overrule Michelle s first issue.
FACTUAL SUFFICIENCY
In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is
legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence
without the prism of the in the light most favorable to the prosecution construct. See Clewis v. State, 922 S.W.2d 126,
129 (Tex. Crim. App. 1996). We ask whether a neutral review of all the evidence, both for and against the finding,
demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the
proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1,
11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).
We must also remain cognizant of the factfinder s role and unique position one that the reviewing court is unable to
occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may believe all, some, or
none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or
rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust
as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v.
State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).
The first type of factual sufficiency review requires us to review the evidence that supports the inference Michelle
intended to assist or promote the aggravated sexual assault of her daughter. Based on the facts in the record, some of
which are recounted above, we find the evidence presented concerning Michelle s intent to assist or promote the
commission of the aggravated assault on J.W. is not so obviously weak as to undermine confidence in the jury s
determination.
The second type of factual sufficiency review requires us to compare the evidence which proves Michelle s guilt
against that which is contrary to her guilt. In addition to her own testimony recounted above, Michelle presented two
witnesses in her defense.
Nicole Conner, Michelle s best friend for fifteen years, testified on her behalf. Conner testified that Wendy Young was
angry one night when they were all at a nightclub. Young confronted Michelle, and Michelle acted surprised and
scared. Conner did not know why Wendy was mad. Young is the person who purportedly told Walizer about Michelle
s father s day present to Todd. The implication of this testimony is that Young made up the story regarding the father s
day present because she was angry with Michelle.
Tonya Barfield, Michelle s younger sister, testified she does not have a good relationship with Todd, but from her
observations J.W. and Michelle were happy.
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Based on Michelle s agreement to allow J.W. into their bed; the amount of Michelle s participation in the aggravated
sexual assault as testified to by J.W. or Michelle; her knowledge of previous assaults of J.W. by Todd; her pursuit of
additional visitation which increased J.W. s exposure to Todd; and her complete lack of any effort to prevent the
aggravated sexual assault of her daughter, we find the proof of Michelle s guilt is not greatly outweighed by contrary
proof. We overrule Michelle s second issue.
CONCLUSION
Having found legally and factually sufficient evidence to establish Michelle was a party to the aggravated sexual
assault of J.W. by Todd, we overrule both issues.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed December 11, 2002
Do not publish
[CRPM]
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