Hershell Obey Jr. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00315-CR
__________________

HERSHELL OBEY JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F20-36121
__________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Hershell Obey for continuous sexual abuse

of a child, a first-degree felony. See Tex. Penal Code Ann. § 21.02. The indictment

alleged that from November 29, 2010 through on or about November 28, 2014,

Obey, when he was 17 years of age or older, and when David 1 was younger than

fourteen years of age:

1
We use pseudonyms to refer to the alleged victim and family members. See
Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with
1
. . . intentionally or knowingly cause[d] the penetration of the mouth of
[David], by inserting the Defendant’s sexual organ; and

. . . intentionally or knowingly . . . cause[d] the sexual organ of the
Defendant to contact the mouth of [David]; and

. . . intentionally or knowingly cause[d] the penetration of the anus of
[David], by inserting the Defendant’s sexual organ; and

. . . intentionally or knowingly . . . cause[d] the sexual organ of the
Defendant to contact the anus of [David.][2]

Obey pleaded “not guilty” to the offense, and a jury found Appellant guilty as

charged in the indictment. Appellant elected for the jury to determine punishment.

After hearing punishment evidence, the jury assessed punishment at twenty-five

years of confinement. The trial court sentenced Appellant in accordance with the

jury’s verdict. Appellant timely appealed. On appeal, Appellant challenges the legal

and factual sufficiency of the evidence supporting his conviction. We affirm the trial

court’s judgment.

Evidence at Trial

Sherry’s Testimony

Sherry testified that David’s mother is her first cousin. According to Sherry,

David’s mother and father lived in Baytown, and when David was young there was

fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process.”). We also use pseudonyms for any non-law enforcement witnesses.
2
Some of the omissions from the indictment include duplicative language
abandoned by the State at trial, and the defense had no objections to deleting the
duplicative language.
2
a time that he had to stop living with his parents. Sherry testified that when David

was nine or ten years old, he lived in Port Arthur with Sherry’s uncle, Robert, who

was also David’s grandfather and the father of Sherry’s cousin, Daniel. When David

moved into Robert’s home, Daniel, Robert’s son, also lived there, and the house was

near where Sherry lived. Sherry testified that she remembered the timeline of when

David came to live in Port Arthur because David was a year and a half or two years

older than her oldest son and at that time David and her oldest son and other cousins

attended the elementary school down the street. According to Sherry, when Daniel

moved to an apartment, David moved from his grandfather’s and moved in with

Daniel, who was David’s uncle. Sherry testified that David and Daniel had a close

relationship and Daniel helped raise David.

Sherry identified the defendant at trial as Obey and testified that she grew up

with him and that he was considered like family as he was best friends with Daniel.

According to Sherry, Obey lived with her for a couple of months when she lived in

Lake Charles around 2015 or 2016. Sherry testified that Obey has a wife but that

both Obey and Daniel are bisexual. Sherry testified that Obey’s mother lived in the

same area as Robert’s house and Sherry’s house in Port Arthur. According to Sherry,

Obey was considered by her children and the other children as “the favorite uncle[]”

and would let the children do whatever they wanted to do when they were with him.

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Sherry testified that she trusted her children with Obey in the past but now she would

not trust him with her children.

Sherry testified that when David briefly lived with Daniel, Daniel lost his job

and had to move from his apartment, so David moved back with his mother in

Baytown briefly until he went to live with Obey. Sherry testified that she did not

know where Obey lived during that time, and that during that time David would not

attend family functions which was uncharacteristic of David. According to Sherry,

when David was younger, he was quiet but playful and was always around other

children, and he was close with Sherry’s niece who was David’s cousin, Allison.

Robert’s Testimony

Robert testified that he is David’s grandfather, Robert’s daughter is David’s

mother, and Daniel is one of Robert’s sons. According to Robert, when David was

younger, he stayed with Daniel at Robert’s house in Port Arthur briefly until Daniel

found an apartment, and then David and Daniel lived at Daniel’s apartment in Port

Arthur. Robert testified that David did go back to Houston to stay with his mother

for “[a] little time.” Robert testified that he had known Obey for a while, Daniel had

initially introduced the family to Obey, Obey visited Robert’s house occasionally,

and Obey was a good friend who was treated like a family member. According to

Robert, he knew that Daniel was bisexual but was not aware of whether Daniel and

Obey had a romantic relationship.

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Robert testified that he believed that David was about eleven years old when

he first came to stay in Port Arthur around 2012, but David could have been younger

or older. Robert testified that David stayed multiple times with Daniel and went back

to Houston or Baytown to stay with his mother, and that when David was staying

with Daniel in Port Arthur, it was common for Daniel, Obey, and David to be at

Robert’s house when he was at work. Robert testified that he never had questions or

concerns about Obey being around David.

Allison’s Testimony

Allison testified that she is David’s cousin and that she is three years younger

than him. According to Allison, she and David were always close and always

together as they grew up. Allison testified that she remembered that when she first

moved to Port Arthur and David was staying at Robert’s house with Daniel, she was

in the first grade. She testified that she remembered when David went back to his

mother’s house and then Obey brought him back to Port Arthur. Allison testified

that she grew up with Obey who was like a family member and that her uncle,

Daniel, introduced everyone in the family to Obey as his friend and later Allison’s

mother married Obey’s cousin. Allison testified that it was fun to be around Obey

when she was younger, and the children in the family liked to stay with Obey

because he would let them do things that their parents would not let them do.

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Allison testified that she was born on June 4, 2005, and David was born on

November 29, 2001. According to Allison, when she was in the seventh grade and

twelve or thirteen years old and David was sixteen or seventeen years old, David

approached Allison wanting to tell her something about Obey, and David was crying

and shaking when he explained to her what Obey had done to him and made her

promise not to tell anyone. She testified that she kept her promise and that as she

and David got older, they had more talks about what had happened to David. Allison

testified that around the time David was in middle school, he was admitted to a

mental institution because he was suicidal. Allison testified that she remembered a

time when David lived with Obey when David was around fifteen, sixteen, or

seventeen, and Obey did not allow David to come to visit his family and Obey

explained that it was because David did not clean up the house. According to Allison,

David lived with Obey off and on until he was eighteen years old.

Testimony of Detective Tomas Barboza

Detective Tomas Barboza with the Port Arthur Police Department testified

that he assists in various cases in performing forensic downloads from electronic

devices and that in 2020 he assisted Detectives Guedry and Jaquez in performing a

download of specific files from David’s phone. According to Detective Barboza, he

downloaded from David’s phone copies of two files associated with a photograph

(JPEGs) and two movie or video files (MOVs). The two photos, the two videos, and

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the metadata from the two video files were admitted into evidence. According to

Barboza, the metadata for the video files indicated that they were created by an

iPhone 6S and one of the videos was created on September 30, 2019, and the other

video was created on March 2, 2020.

Testimony of FBI Agent Nate Ayers

Special Agent Nate Ayers with the FBI testified that in 2020 he assisted in an

investigation concerning Obey being conducted by the Port Arthur Police

Department. According to Agent Nayers, he reviewed the initial reports from Port

Arthur Police Department and looked at the location where the crimes allegedly took

place and conducted surveillance of a residence and began drafting a search warrant

for the residence but learned that Obey no longer lived there. Special Agent Ayers

testified he continued to monitor the case and, when Obey was arrested on state

charges, Ayers inquired into whether Obey had any devices on his person when

arrested. According to Ayers, he learned that at the time of Obey’s arrest, Obey did

not have any devices on him that Ayers could have examined forensically to

determine whether or not they contained child pornography.

Daniel’s Testimony

Thirty-six-year-old Daniel testified that he is David’s uncle, and that David is

like a son to him because Daniel took care of him and had been a parent to him in

many ways for large periods of David’s life. According to Daniel, David first came

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to live with him at the end of 2006 in Port Arthur when David was about five years

old until Daniel moved back to Houston in 2009. Daniel testified that David’s mother

was having problems, David’s father had been released from prison and there were

issues of physical violence, and Daniel volunteered to take care of David so he would

not be living with his father. After David moved back to Baytown with his mother

in 2009, Daniel moved back in September of 2011 to his father’s house in Port

Arthur, and David came to live with Daniel at that time as well. Daniel testified that

around the same time, he met Obey, who was about to turn eighteen years old and

lived with his mother a couple of streets over. Daniel testified that he is bisexual and

that he and Obey had a romantic relationship for a couple of months when they met

which “evolved into more like brothers than anything.” According to Daniel, Obey

was introduced to Daniel’s extended family within the second week of meeting him,

and then Obey was around the family on almost an every day basis and was

considered part of the family and would often volunteer to help family members by

transporting and babysitting their children when they needed it. Daniel described

Obey as charismatic and agreed that the children in the family considered Obey the

“fun uncle[.]”

Daniel testified that he lived with David at Daniel’s father’s house for about

a year or two when David was nine or ten years old in 2011 and 2012, Obey met

David sometime after January of 2012, then Daniel moved into his own apartment

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with David in mid-2012 until September of 2014 when David was eleven or twelve

years old. According to Daniel, he enrolled David in school at Tekoa in August of

2012. Daniel testified he had to move out of the apartment in September of 2014

because his employment situation changed so he could no longer take care of David.

According to Daniel, he was under the impression that David was going back to live

with his mother, but Daniel found out from Obey a couple months later that David

was living with Obey. Daniel testified that at the time David was living with Obey

he was around thirteen years old. Daniel testified that although he may not remember

well all the dates from that long ago and spanning over a decade, he would trust

David’s memory on those dates, but Daniel knew that whenever David was living

with him that David was under fourteen years of age.

Daniel testified that when he lived at his father’s house, Obey babysat David

while Daniel was at work and that Obey had time with David by themselves “pretty

often[]” and on a day-to-day basis. Daniel testified that at one point Obey lived in

an apartment complex within walking distance to Daniel’s apartment in Port Arthur

but he could not remember when Obey lived in that complex, but Daniel stated that

“regardless, he was there with us every day[]” at Daniel’s apartment and after Daniel

left for work, Obey would help get David up and take him to school. Daniel testified

that throughout the entire time he lived at his father’s house with David and also

9
when he and David lived at the apartment, it was a regular occurrence for Obey to

come over and be alone with David during those various periods of time.

According to Daniel, he never noticed anything sexually inappropriate

between Obey and David, and if he would have noticed that then he and Obey

“would have had a problem[]” and “[i]t would have been addressed.” Daniel testified

that he had not seen Obey in the years leading up to the trial, and if the allegations

against Obey were true, Daniel “just wouldn’t understand the reasons[]” and felt that

if he had never introduced Obey to the family then maybe the assaults would not

have happened.

Testimony of Sadie Guedry

Sadie Guedry testified that she was formerly a detective with the Port Arthur

Police Department and investigated this case. Guedry testified that a patrol officer

contacted her and told her about this case that had just been reported to him.

According to Guedry, the officer thought Guedry should look into it and Guedry’s

supervisor assigned her the case. Guedry testified that she spoke to eighteen-year-

old David the next day at the police station. Guedry testified that David was born on

November 29, 2001. According to Guedry, David told her that Hershell Obey, who

was a close friend of the family, had sexually abused him since he was nine or ten

years old. According to Guedry, because David was eighteen years old and was

reporting abuse he suffered when he was younger, she was allowed to continue to

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talk to him because he was an adult. Guedry testified that David pointed her to digital

evidence on his cell phone, and she asked Detective Barboza, who was trained in

downloading digital files from electronic devices, to assist her in downloading two

photos and two videos. Guedry testified that when she asked David why he did not

initially report the abuse, he said there were many different factors, including a fear

of reporting or a fear of Obey, and that before David was eighteen, he was not an

adult and did not have the confidence or financial stability to be out on his own.

According to Guedry, the first location that was pertinent to her investigation

was David’s grandfather’s house in Port Arthur where David moved in with Daniel

and his grandfather when David was nine or ten years old, and that Obey would have

been at least seventeen years old at that time. Guedry testified that during her

investigation, David reported that he later moved to Obey’s mother’s house where

Obey lived, then moved back to Baytown when he was around thirteen years old,

then moved back to Daniel’s apartment when he was around fifteen years old. David

said after that he moved back to his mother’s house in Baytown when he was

approximately sixteen years old, then moved back in with Obey at an apartment in

Port Arthur, then moved with Obey to Obey’s mother’s house in Port Arthur for a

few months. Later he lived with Obey and his wife and children in a rental house in

Port Arthur, which was the last permanent place David lived at the time when he

made his outcry to Guedry. Guedry testified that although the timeline of the dates

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and addresses were confusing and that it would not surprise her if David’s memory

about those may be “off” because he was remembering when he was a child, she

confirmed that David lived in Port Arthur from approximately 2010 to 2014 (when

he was younger than fourteen) and did not move around much when he was under

the age of fourteen. Guedry testified that prior to living with Obey when David was

sixteen, David lived in Port Arthur with his grandfather or uncle or some

combination of the two, and that Obey was around him during that time.

Guedry testified that she reviewed the screenshots of images admitted as

State’s Exhibit 3 and two videos admitted as State’s Exhibit 4 on David’s phone

when he initially talked to her about his outcry and his abuse, and those exhibits

were published to the jury. According to Guedry, the screenshots of images admitted

as State’s Exhibit 3 that were sent to David’s phone depict a penis, and one of the

images depicts a scar or mark on the inner thigh that provided Guedry a potential

identifier that helped her identify Obey’s identity as the person in the images. Guedry

testified that the two videos admitted as Exhibit 4 depict David giving oral sex to a

male whose face is not shown, and the videos also depict a similar identifying marker

in the same area as in one of the images admitted as Exhibit 3, except in the videos

the mark looked like it had healed some. According to Guedry, David informed her

that the two photographs were of Obey and that Obey was the male whose face was

not shown in the two videos. Guedry testified that the metadata admitted into

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evidence for the two videos indicated that the first video was created on September

30, 2019, at Obey’s mother’s house, and the second video was created on March 2,

2020, at the rented residence where David last lived with Obey. Guedry testified that

David would have been seventeen years old in the first video and eighteen years old

in the second video.

Guedry obtained a search warrant to take photographs of Obey to help

determine if he was the person in the images and the videos, and the photographs

she took of Obey two-and-a-half years after David made his allegations and just prior

to trial were admitted into evidence and published to the jury. On cross-examination,

Guedry acknowledged that she “would have done things differently[]” and attempted

to locate Obey earlier to take the photographs, but she was unable to locate him for

the search warrant and “he fled to Dallas[.]” According to Guedry, the photographs

depict a possible scar in the same general area as the scar or marking in one of the

images and in the two videos, and the one of the photographs she took of Obey shows

an arm tattoo that was consistent with the person’s tattoo in the second video. Guedry

testified that based on her findings, the individual depicted in State’s Exhibit 3 and

in State’s Exhibit 4 with David had a scar in the same location as documented in her

photographs of Obey.

Guedry recalled that she had information that Obey had other files on his

devices that might contain similar pornographic content and she communicated with

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FBI Agent Nate Ayers to obtain help in finding Obey and any of his devices, but that

when Ayers conducted surveillance, he learned that Obey had left the area.

According to Guedry, she viewed a forensic interview by the FBI of David, and the

information David gave the FBI was generally consistent with the information he

gave her, although the FBI interviewer had the benefit of having information Guedry

had obtained during her investigation so the FBI interviewer was able to ask more

informative questions that may have led David to reveal more information than he

offered in Guedry’s interview. Guedry testified that based on her investigation she

was able to definitively confirm that David and Obey were the two people in the

videos, and that even though David was older than fourteen years old and above the

age of consent at the time they were created, Guedry believed that the videos helped

explain David and Obey’s relationship prior to the creation of the videos, supported

the fact that they had a previous sexual relationship, and corroborated other evidence

Guedry obtained supporting David’s allegations that Obey sexually abused him

when he was younger than fourteen years of age. Guedry testified that the fact that

David had a continuing sexual relationship with Obey after David turned seventeen

or eighteen years old is consistent with David’s abuse allegations, because that could

be typical behavior of a victim of sexual abuse if the victim feels they have nowhere

to go. According to Guedry, she believed David had an emotional connection to

Obey and that in situations where an adult is sexually abusing a young child, the

14
adult gains the trust of the child through grooming, and that in those situations the

victim can have some sort of attachment to the abuser and even feel love for them

even after the victim continues to have a relationship with the abuser once the victim

was of the age of consent.

David’s Testimony

David testified that at the time of trial he was twenty-one years old, and he

was born on November 29, 2001. He testified that when he was younger, his mother

lived in the Baytown area and his father was in prison. According to David, when

his father got out of prison and returned home, he was physically abusive to David

and David moved to stay with his Uncle Daniel at David’s grandfather’s house in

Port Arthur when David was five, six, or seven years old. David testified that he

moved back home to Baytown and then moved again when he was nine, ten, or

eleven years old to live with his Uncle Daniel at David’s grandfather’s house in Port

Arthur. David agreed on cross-examination, however, that according to school

records, he came back to Port Arthur in 2012. David testified he attended Tekoa

Academy “which is on the elementary side.” David recalled that when he went to

middle school in Port Arthur, he was living with his Uncle Daniel at Daniel’s

apartment in Port Arthur. David testified he moved back to Baytown when he was

thirteen years old for his seventh and eighth grade years at Baytown Junior High,

came back to Port Arthur and lived with Obey, went back to Baytown, returned to

15
Port Arthur when he was fifteen or sixteen years old and lived with Obey and Kathy.

Later, David moved back to Baytown briefly when he was sixteen, and then he

moved back to Port Arthur when he was a junior and was supposed to live with his

aunt but ended up living with Obey and Kathy because his aunt had already taken in

David’s sister and three children and David did not believe his aunt could financially

take him in, too.

David recalled moving back and forth often and felt like he either did not have

a choice where he lived or that if he did have a choice, he had to choose the “best of

two bad choices.” Although David agreed he had difficulty in reconstructing the

timeline of when he lived in Port Arthur, he remembered that when he was younger

than fourteen, he spent the majority of that time in Port Arthur and some brief periods

of the time in Baytown. According to David, when he was younger, he wanted to

live with his Uncle Daniel because he felt safe with him in the beginning and if he

lived with his mother he had to “worry[] about getting beat on or things like that.”

David recalled that when his Uncle Daniel introduced him to Obey, Obey took

David and David’s aunts and his cousins to a store to buy food. David testified that

when he met Obey, Obey was at least eighteen years old and was out of school.

David testified that he and his cousins liked being around Obey because he was fun

to be around, would get them out of the house to have fun, and they got to do

whatever they wanted. According to David, Obey took a special interest in spending

16
time with David, Obey would baby-sit him, and Obey would take and pick him up

from school, buy him clothes and toys, and was like a father-figure. David recalled

he felt like Obey cared about him. David testified that he would be at Obey’s house

when he got out of school until his Uncle Daniel got off work, and David spent a lot

of time with Obey. David saw Obey at least once a week when he first moved to

Port Arthur when he was roughly nine, ten, or eleven years old and all the way up

until he moved back to Baytown the last time. David testified that even when he

lived at his Uncle Daniel’s apartment when David was in middle school, Obey would

often come over because at some point he moved to the apartment complex directly

behind Daniel’s complex and he would often drop David off or pick him up from

school. David testified that it felt natural to move in with Obey later. David recalled

that when he was younger, he had heard that his Uncle Daniel and Obey had been in

a romantic relationship, but he did not know for sure. According to David, he did

not really think about his own sexuality before he was around his Uncle Daniel and

Obey, but they influenced him because he was close to them, and as a result, he

concluded that he is gay.

According to David, Obey first sexually abused him when he was nine or ten

or eleven years old, about two or three years after they first met. David recalled that

it was at the end of elementary school, and he and Obey were the only people home

and he was taking a bath at his grandfather’s house which only had one bathroom.

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David recalled that he unlocked the bathroom door because Obey said he needed to

use the bathroom, and David got back in the bathtub. According to David, Obey used

the restroom, left, came back in and poured a jug of cold water on David as a prank,

they laughed, Obey left, Obey came back in, locked the bathroom door behind him,

took off his clothes, told David to open his mouth, and Obey forcefully made David

give him oral sex by putting his penis in David’s mouth. David recalled that Obey

cleaned himself, put on his clothes, left the bathroom, and told David not to tell

anyone and it was their secret. David testified in detail what occurred, and he recalled

that he was a child and that he did not know if it was wrong, but that he was scared

and was afraid of Obey after that. David testified that he did not tell his grandfather

about what had happened because he was afraid his grandfather would not believe

him, and David did not want Obey to get hurt because Obey treated him like his own

son, and David had never had a father-figure like that. David recalled that after that

he still wanted to be around Obey but did not want him to do that again. David

testified that Obey then started to buy him more toys and clothes, would take him

more places, and would check him out of school early.

David testified that the sexual assaults started again a few months later and

that they occurred at Obey’s mother’s house when Obey took him there while Obey’s

mother was in the hospital. David described when Obey sexually assaulted him at

Obey’s mother’s house “[s]ometime down the line[]” and how Obey forced David

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to give Obey oral sex on the couch and in the master bedroom. According to David,

this happened often. David testified that in the beginning Obey had to force him but

then “down the line” David knew what to do and “[went] along with it.”

David testified that he said “no” to Obey’s sexual advances a few times,

including a time at Obey’s mother’s house that Obey got on top of David and pinned

David’s arms down with Obey’s knees and forced David to perform oral sex on him

despite David telling him, “no.” David recalled in detail another instance when Obey

sexually abused him when he was living at his grandfather’s and David was between

the age of nine and twelve and attending Tekoa elementary school, and he recalled

another time when he and Obey were at Obey’s mother’s house when she was not

there and Obey penetrated David’s anus with his penis, David told Obey it was

hurting, and then Obey made David perform oral sex on him. David described

another instance where he tried to tell Obey “no” at Obey’s mother’s house when he

was about sixteen or seventeen and living with Obey, and Obey came into the guest

bedroom late at night when Obey’s wife Kathy was in the other room, and Obey

stood over David and made him perform oral sex despite David telling him, “no.”

According to David, Kathy interrupted them by knocking on the locked door and

Obey told Kathy his reason for being in there was that he was lying on the heating

pad and his back was hurt. David felt like Kathy was “turn[ing] a blind eye[]” to

what was going on and David knew that Kathy knew Obey was bisexual, including

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that she would make jokes at home about it. According to David, the assault at his

grandfather’s in the bathtub and the time Obey forced him into anal sex were more

than a year apart, but in between those times Obey forced David to perform oral sex

once or twice a week, and it could have been fifty or a hundred or more times. He

also testified that when he was younger than fourteen years old, Obey sexually

assaulted him at Susan’s apartment playing hide and seek, David was hiding in a

bed, and Obey made him perform oral sex on him while Obey touched David’s

genitals.

According to David, he and Obey began recording some of the sexual acts

Obey was having David do or perform on him, including the videos from David’s

phone and screenshots from videos that had been admitted into evidence as State’s

Exhibits 3 and 4. David testified that the videos were recorded on David’s phone

when he was seventeen and eighteen. David identified himself and Obey in the

videos, identified Obey’s tattoo in one of the photographs, and testified that Obey

had a scar or scratch on his inner left thigh. David testified that he and Obey used

Snapchat for purposes of exchanging the videos containing sexually explicit content

between Obey and David because they could set Snapchat to delete the video right

after it was opened.

David testified that he got along well with Kathy, and Kathy’s financial

stability was one of the reasons he wanted to stay with them. When he chose the last

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time to return with Kathy and Obey to live with them, he knew the abuse could

continue but he knew he would be better cared for with Kathy and Obey. David

testified that he did not say anything about the abuse until he was eighteen years old,

and that “[i]t wasn’t even supposed to come out then.”

Dustin’s Testimony

Dustin testified for the defense and testified that he and David had been

friends since they were around eleven years old and that, although they had not

talked in “quite a while[,]” their friendship had continued until the time of trial. At

some point, David told Dustin that Obey was in jail, Dustin was shocked and asked

why, and David told him about his allegations against Obey. Dustin testified that

because he knew Obey and was surprised at the allegations, he on a later occasion

questioned David about whether the allegations were true, and David stated that they

were not true and that he was lying and was angry. According to Dustin, David never

said what was causing his anger.

Barbara’s Testimony

Barbara, Obey’s mother and a witness for the defense, was familiar with

David because David had lived with Obey. She testified that she met David in 2012

and that, at that time, Obey was living with Susan. Barbara testified that she had no

contact with David from 2012 until 2017. According to Barbara, in the times that

Obey lived with her, David never lived there with him, but in 2017, Kathy, Obey,

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their children, and David moved into Barbara’s home after Hurricane Harvey and

Barbara did not want David living there. Barbara testified that she called David’s

mother and told her to come pick David up because he was not going to stay at

Barbara’s house because Barbara did not want him living there because she had seen

him disrespect his aunt, and David’s mother came and picked him up. According to

Barbara, in 2018 David came back and lived with Obey and Kathy and their children

in her house and she tried to evict David, but the police informed her she could not

because Obey and Kathy were David’s guardians.

Barbara agreed that she talked to Obey over the phone the night before, after

her testimony at trial had started and the trial recessed for the day, and they talked

about how her testimony went, how she got confused when she testified, and about

the locations she testified to. She denied talking to Obey about the case any time

prior to the telephone call the night before, and she denied knowing that Obey was

bisexual or that he had a sexual relationship with David.

Esther’s Testimony

Esther, Obey’s mother’s friend testified as a witness for the defense. Esther

explained that she lives across the street from Barbara, Obey’s mother, and she has

a key to Barbara’s house. According to Esther, she has been friends with Barbara for

a long time, she and Barbara “treat each other like sisters[,]” and she has known

Obey since he was born. Esther agreed that Obey lived with Barbara until June of

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2011 and that he would have to get a key from Esther in order to get into his mother’s

home, he was not allowed to have anyone go in the home with him, and the only

way he would go in the house is when Barbara would tell Esther to let him in.

Esther testified that she knew of David through her grandson saying who

David was in passing and she did not see David in 2010, 2011, and 2012. Esther

could not recall when she first met David, but believed he was maybe ten or eleven

years old.

Linda’s Testimony

Linda, Obey’s mother-in-law and a witness for the defense, testified that she

met David through Obey in 2017, when David came to stay with her in Nederland

during Spring Break or some other break for a short amount of time. Linda recalled

that David used her Nederland address “to go to school[,]” he would be at her house

until someone picked him up after school, but he did not spend the night there other

than over that one break. According to Linda, after that, David moved in with Obey

and Kathy and their children at Barbara’s house. Linda testified that she lived with

Obey and Kathy at their apartment in 2019 with David and his brother. Linda

recalled that in 2019, she and Obey picked David up in Baytown after David had

called Obey several times stating that David’s mother had kicked him out, he had

nowhere to go, and they brought him back to Obey and Kathy’s apartment to stay.

According to Linda, she never noticed anything inappropriate between Obey and

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David, and based on her experience with David and his reputation, she did not

believe David was trustworthy. Linda agreed she had been told about the video with

Obey and David, and she stated that Obey would have been twenty-seven years old

when David was seventeen. Linda testified that she trusted Obey around her

grandchildren.

Kathy’s Testimony

Kathy, Obey’s wife and a defense witness, testified that she was asked to help

prepare a timeline in preparation for the trial and that she provided a description of

where she and Obey were living at the time and had pictures to support the

statements. According to Kathy, she met Obey in 2009, they started living together

in 2016 at Obey’s mother’s house where he had been living, and after a month or

two, Obey and his mother had an argument, and Obey and Kathy moved in with

Kathy’s mother. Kathy recalled that in November of 2016 she and Obey separated

because Obey was living with another woman, and then Kathy and Obey got back

together in January of 2017, when she was pregnant with their son. Kathy testified

that she first met David when he was sixteen and he and his siblings came and stayed

with them for Spring Break when she was pregnant, she had only met David’s

mother once, she was not aware at that point that David had previously lived with

Obey, and she did not want David and his siblings living with them. They took them

back to Baytown and David’s mother gave David a choice where to live and he

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wanted to live with Kathy and Obey so they brought him back home with them that

same day. According to Kathy, she and Obey have been David’s “legal guardians”

since March of 2017, but they did not go through court and instead had powers of

attorney. Kathy testified that David lived at her mother’s home in Nederland from

March of 2017 so he could go to school in Nederland because Kathy did not want

him in school in Port Arthur, David went back and stayed a little while with his

mother because he did not want to go with Kathy and Obey to Louisiana, and

eventually David moved in with Obey and Kathy in Port Arthur. Kathy testified that

after Hurricane Harvey messed up their apartment, they stayed at a hotel in Louisiana

from September 2017 until January of 2018, but David went back to Baytown, and

then they moved back to Obey’s mother’s house. Kathy testified that she married

Obey in 2018. According to Kathy, she did not see David again until 2019 when

they got a phone call that David’s mother had kicked him out and he was coming to

live with them. Obey’s mother told Kathy and Obey that she was not comfortable

with David there, and if he did not leave, they all had to leave. They moved to their

own place in 2019, and David moved out in 2020 after there was a fight because

Kathy was upset with David for not paying his bills on time and because she

constantly had to clean up after him. According to Kathy, Obey and David also had

a confrontation and David took his things and left. Kathy agreed that she and Obey

decided they wanted to move to get a fresh start away from Port Arthur, and they

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visited Dallas on June 26, 2020. She testified that she did not know when David

reported the case to the Port Arthur Police Department and did not know whether

Obey knew, but that if David reported to the police on June 3, 2020, then she agreed

that she and Obey were in the process of moving to Dallas a few weeks later. Kathy

recalled that in July of 2020 Obey moved to Dallas to live with his cousin and look

for employment, but he did not “flee” to Dallas as others alleged.

Kathy testified that Obey’s birthday is January 22, 1993, and that around the

time of “2010’ish” he would have been seventeen years old. Kathy testified that she

never caught Obey and David in an awkward position and never saw anything

inappropriate between Obey and David. Kathy testified that she and David

developed a bond over time and that he was a troubled child. Kathy agreed that in

March of 2020, David was making plans to move out of the apartment without them

knowing. Kathy described David as sweet but manipulative, that he had a bad

reputation as far as honesty and trustworthiness, and he made allegations to Kathy

that Obey was involved in sexual activity. Kathy admitted that Obey had “strayed

from the marriage relationship[]” which had caused issues between them, she knew

Obey to be bisexual, and agreed that it “would cause problems for [her]” if it was

true that during the time that David was above the age of consent he had a consensual

relationship with Obey. Kathy agreed that she did not know if Obey and David had

a relationship prior to David being seventeen years old. Kathy testified that she

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talked to Obey on the phone during the trial about the trial and about the witnesses

that had come forward. Kathy testified that she loves Obey and did not want anything

bad to happen to him.

Kerry’s Testimony

Kerry, Obey’s cousin and a witness for the defense, testified that she used to

date one of Obey’s friends. She testified that she would interact with David when

she would go to Obey and Kathy’s house in 2017. According to Kerry, David would

get upset if he was not allowed to go places with Obey, that David had a reputation

for being dishonest and for provoking, and that David lied and made allegations that

Obey was having an affair with her and others. Kerry testified that she trusts Obey

with her children.

Pamela’s Testimony

Obey’s cousin and a defense witness, Pamela, testified that she had never

heard of David, and that Obey had come to stay with her for a few months in the

summer of 2010.

Susan’s Testimony

The mother of Obey’s children and a witness for the defense, Susan, testified

that she and Obey were together from 2011 to early 2014, and that David started

coming around in maybe 2012. Susan testified that while she and Obey were

together, there were times when they broke up and lived at different locations.

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According to Susan, they began living together in mid-May of 2011 at her mother’s

house, then they lived for a month or so at his mother’s house, and then they moved

to an apartment for a couple of years, and then moved to another apartment. Susan

recalled that David never lived with them, but she would babysit him on occasion

for about thirty minutes or an hour after he got home from school and until his uncle

would pick him up. She testified that she stopped babysitting David after he stole

her wedding bands and she refused to let him come back. According to Susan, David

contacted her once about his allegations against Obey and David was “extremely

elaborative[,]” she did not believe him, and at the time of trial, she still did not

believe David’s allegations.

Sufficiency of the Evidence

On appeal, Appellant challenges the legal and factual sufficiency of the

evidence supporting his conviction. We construe Appellant’s issue on appeal as a

challenge to the legal sufficiency of the evidence. See Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (there is no longer any meaningful distinction

between a legal and factual sufficiency standard when reviewing sufficiency of

evidence to sustain a criminal conviction).

Under the prior version of section 21.02 of the Texas Penal Code applicable

here,

(b) A person commits an offense [of continuous sexual abuse of a child]
if:
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(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.

Act of May 17, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1127,

1127 (amended 2011, 2017, and 2021) (current version at Tex. Penal Code § 21.02).

Section 21.02(c) of the Texas Penal Code defines “act of sexual abuse” as including,

among other things, an act that constitutes the offense of aggravated sexual assault.

Id.

(a) A person commits an offense [of aggravated sexual assault]:
(1) if the person:
...
(B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child
by any means;
(ii) causes the penetration of the mouth of a child by the
sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate
the mouth, anus, or sexual organ of another person, including
the actor;
. . . or
(v) causes the mouth of a child to contact the anus or sexual
organ of another person, including the actor; and
(2) if:
...
(B) the victim is younger than 14 years of age[.]

See Act of Apr. 7, 2011, 82nd Leg., R.S., ch. 1, § 6.05, 2011 Tex. Gen. Laws 1, 16

(amended 2015 and 2017) (current version at Tex. Penal Code Ann. § 22.021). “The

State need not prove the exact dates of the abuse, only that ‘there were two or more
29
acts of sexual abuse that occurred during a period that was thirty or more days in

duration.’” Hernandez v. State, No. 09-23-00007-CR, 2023 Tex. App. LEXIS 9471,

at *25 (Tex. App.—Beaumont Dec. 20, 2023, pet. ref’d) (mem. op., not designated

for publication) (quoting Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland

2012, no pet.)); Lane v. State, 357 S.W.3d 770, 773-74 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d). “[M]embers of the jury are not required to agree unanimously

on which specific acts of sexual abuse were committed by the defendant or the exact

date when those acts were committed.” Act of May 17, 2007, 80th Leg., R.S., ch.

593, § 1.17, 2007 Tex. Gen. Laws 1127, 1127.

In reviewing the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). We give deference to the factfinder’s responsibility to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record

contains conflicting inferences, we must presume that the factfinder resolved such

facts in favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at 899

n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury as

factfinder is the sole judge of the weight of the evidence and credibility of the

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witnesses, and it may believe all, some, or none of the testimony presented by the

parties. See Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020) (citing

Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974)).

“Direct and circumstantial evidence are treated equally: ‘Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.’” Clayton, 235

S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). Each fact need not point directly

and independently to the guilt of the defendant, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the conviction. Temple v.

State, 390 S.W.3d 341, 359-60 (Tex. Crim. App. 2013) (citing Hooper, 214 S.W.3d

at 13; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). The

testimony of a child victim, standing alone and without corroboration, is sufficient

to support a conviction for sexual assault of a child. See Tex. Code Crim. Proc. Ann.

art. 38.07(a), (b)(1); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978).

On appeal, Appellant challenges generally the sufficiency of the evidence

supporting his conviction and specifically argues that there was insufficient evidence

to support the jury’s finding that the State proved beyond a reasonable doubt that

David was younger than fourteen years of age when the offenses occurred. The jury

heard David testify that he was born on November 29, 2001, and that he moved in

with Daniel to David’s grandfather’s house in Port Arthur when he was between

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nine and eleven years old. David testified that he attended Tekoa elementary school

and that he would not disagree if school records showed he came back to Port Arthur

in 2012. The jury heard David testify that he met Obey when Obey was at least

eighteen years old, and the jury heard Kathy’s testimony that Obey was born on

January 22, 1993. There was evidence presented to the jury from David’s testimony

that Obey first sexually assaulted him when he was between nine and eleven years

old and that it was at “[t]he end of elementary school[,]” and that Obey made David

engage in oral sex by forcing David to put Obey’s penis in David’s mouth while

David was in the bathtub at his grandfather’s house. The jury heard David testify

that the sexual assaults continued a few months later at Obey’s mother’s house and

that those assaults happened often and at least once a week after the time of the first

assault. The jury heard David testify that when David was between the age of nine

and twelve, and while he was at Obey’s mother’s house, Obey penetrated David’s

anus with Obey’s sexual organ and Obey put his sexual organ in David’s mouth.

David also testified that Obey put his sexual organ in David’s mouth when playing

hide and seek at Susan’s apartment when David was younger than fourteen years

old. The jury also heard Guedry’s testimony that based on her findings, that Obey’s

scar she photographed matched the scar of the person in the images and videos from

David’s phone and that even though the videos were created at a time when David

was old enough to consent, they corroborated other evidence Guedry obtained

32
supporting David’s allegations that Obey sexually abused him when he was younger

than fourteen years of age. The jury heard Guedry’s testimony that David reported

to her that Obey had sexually assaulted him since he was nine or ten years old, and

that Obey would have been at least seventeen years old at the time. Guedry testified

that it would not surprise her if David’s memory of the dates could be “off” because

he was remembering when he was a child, but that she confirmed that David lived

in Port Arthur from approximately 2010 to 2014 when he was younger than fourteen.

The jury heard Daniel’s testimony that he moved to his father’s house in Port Arthur

in 2011 and David came to live with him there in 2011 and 2012 when David was

nine or ten years old, that Daniel met Obey about the same time, and that Daniel

introduced his family to Obey within the second week of meeting him and from then

on Obey was around the family almost every day. Daniel testified that he may not

remember the dates well but would trust David’s memory on those dates, but that

Daniel knew that whenever David was staying with Daniel that David was under

fourteen years of age. Daniel also testified David met Obey sometime after January

2012 and that Daniel enrolled David at Tekoa elementary in August of 2012. The

jury heard Sherry testify that when David was nine or ten years old, he lived in Port

Arthur with David’s grandfather and David’s uncle Daniel, and that David was a

year and a half or two years older than her oldest son and David and her oldest son

and other cousins attended the elementary school down the street. The jury heard

33
David’s grandfather testify that he believed David was about eleven years old when

he first came to stay in Port Arthur around 2012. Also, Allison testified that she is

three years younger than David and that she remembered that she was in the first

grade when David first moved to Port Arthur and was staying at his grandfather’s

house with Daniel.

The jury, in its role as factfinder, heard David’s testimony and could have

found his testimony credible. The jury heard David testify in detail about Obey

sexually assaulting David when he was under the age of fourteen years old and that

for more than a year the sexual assaults occurred at least once a week. As noted

above, the testimony of a child victim, standing alone and without corroboration, is

sufficient to support a conviction for sexual assault of a child. See Tex. Code Crim.

Proc. Ann. art. 38.07(a), (b)(1); Garcia, 563 S.W.2d at 928. Based on the evidence

at trial, the jury could have concluded that “there were two or more acts of sexual

abuse that occurred during a period that was thirty or more days in duration.” See

Hernandez, 2023 Tex. App. LEXIS 9471, at *25; Brown, 381 S.W.3d at 574; Lane,

357 S.W.3d at 773-74; see also Act of May 17, 2007, 80th Leg., R.S., ch. 593, §

1.17, 2007 Tex. Gen. Laws 1127, 1127; Act of Apr. 7, 2011, 82nd Leg., R.S., ch. 1,

§ 6.05, 2011 Tex. Gen. Laws 1, 16. Even with the conflicting evidence as to David’s

age, on this record the jury could have inferred from the evidence that, at the time of

the acts of sexual abuse by Obey, David was younger than fourteen years of age. See

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Hooper, 214 S.W.3d at 14-15 (jurors may draw reasonable inferences from the

evidence); see also Act of May 17, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007 Tex.

Gen. Laws 1127, 1127; Act of Apr. 7, 2011, 82nd Leg., R.S., ch. 1, § 6.05, 2011

Tex. Gen. Laws 1, 16. We conclude the evidence is sufficient to support the jury’s

finding that David was under fourteen years of age when he was sexually assaulted

by Appellant and Appellant was seventeen years of age or older at the time of the

sexual assaults.

Viewing the evidence in the light most favorable to the verdict and deferring

to the jury’s authority to determine the credibility of witnesses and the weight to give

their testimony, we also conclude that a reasonable factfinder could have found the

essential elements of the offense beyond a reasonable doubt. See Tex. Code Crim.

Proc. Ann. art. 38.07(a), (b)(1); Metcalf, 597 S.W.3d at 855; Brooks, 323 S.W.3d at

902 n.19; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13; Garcia, 563

S.W.2d at 928.

We overrule Appellant’s issue and affirm the trial court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on July 22, 2024
Opinion Delivered July 31, 2024
Do Not Publish

Before Johnson, Wright and Chambers, JJ.
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