Luckus Baines Moore v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00231-CR

Luckus Baines Moore,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
19th District Court of McLennan County, Texas
Judge Thomas C. West, presiding
Trial Court Cause No. 2019-1762-C1

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Luckus Baines Moore was convicted of seven counts of Aggravated

Sexual Assault of a Child and two counts of Sexual Assault of a Child. See TEX.

PENAL CODE §§ 22.021, 22.011. He was sentenced to life in prison in Counts I

through VII and 20 years in prison in Counts VIII and IX. Because Moore did

not show trial counsel rendered ineffective assistance and because the evidence
was sufficient to support Moore’s convictions, the trial court’s judgments are

affirmed.

BACKGROUND

Kim Clark, a retired detective who worked for the Waco Police

Department, received a walk-in report on May 10, 2013, which was taken by

another officer. T.M. and her sister made the report. T.M. was 19 years old at

the time she made the report. The report alleged that Moore, T.M.’s father,

was sexually abusing both T.M. and her sister. T.M. reported the abuse to her

occurred two to three times a week. T.M. also reported she had an abortion at

16 years of age and 17 years of age, and both of the aborted babies belonged to

Moore. Clark interviewed both T.M. and her sister regarding their reported

sexual abuse.

While investigating the report, Clark discovered a 1997 police report

where the Waco Police Department investigated an injury to a child case

involving T.M. A class C ticket for assault was given to Moore for bruises T.M.

had on her thighs. T.M. recanted when a child protective services caseworker

told T.M. and her parents that T.M. and her siblings would be separated and

placed in foster care and then confronted T.M., in front of her parents, about

the truthfulness of the allegations. Clark also discovered a 1998 Waco Police

report where T.M. made an outcry to a counselor at school alleging T.M. was

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being sexually abused by Moore. During that investigation, the Waco Police

Department decided to send T.M. to the advocacy center for a forensic

interview. During the forensic interview, T.M. disclosed the sexual abuse she

endured by Moore, suicidal ideations, self-mutilation, eating disorders, and

sleep disorders. T.M. was taken to a behavioral health center for mental health

treatment. At the time of her present investigation, Clark subpoenaed the

center’s records, but the records had been destroyed.

Also during her investigation, Clark discovered a 2006 Waco Police

report where T.M. called 911, herself, for attempting suicide. T.M. was taken

to a behavioral health center again for mental health treatment. During her

stay there, T.M. again disclosed the sexual abuse she endured by Moore. The

2006 case and report had been assigned to a detective, and during that

detective’s investigation, T.M. recanted her allegations against Moore. Clark

then discovered yet another report, made in 2012, that Moore had sexually

abused T.M. Nothing happened with that report.

Moore was arrested concerning the present case in early December of

2014. T.M.’s sister recanted her outcry of sexual abuse soon after Moore’s

arrest and after T.M.’s brother threatened their sister and mother. At some

point, Moore was indicted for sexual abuse. Moore was then reindicted in

September of 2019. In December of 2020, the case was transferred to a

Moore v. State Page 3
different trial court. The trial began in June of 2023.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, Moore contends trial counsel was ineffective in failing

to provide the trial court with a specific exception to the State’s hearsay

objection to a defense witness’s testimony. This issue is raised for the first

time on appeal.

Claims of ineffective assistance of counsel must be firmly rooted in the

record. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). "Under

most circumstances, the record on direct appeal will not be sufficient to show

that counsel's representation was so deficient and so lacking in tactical or

strategic decision-making as to overcome the strong presumption that

counsel's conduct was reasonable and professional." Scheanette v. State, 144

S.W.3d 503, 510 (Tex. Crim. App. 2004). Thus, trial counsel should generally

be given an opportunity to explain his actions before being found ineffective.

Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021); Rylander v.

State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

A silent record that provides no explanation for counsel's actions will not

overcome the strong presumption of reasonable assistance. Johnson, 624

S.W.3d at 586; Rylander, 101 S.W.3d at 110-11; Thompson, 9 S.W.3d at 814.

Thus, if the record does not contain affirmative evidence of trial counsel's

Moore v. State Page 4
reasoning or strategy, we presume counsel's performance was not deficient.

Johnson, 624 S.W.3d at 586; Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.

2002).

Here, the record is silent as to why trial counsel did not provide the trial

court with a specific exception to the State's hearsay objection. Accordingly,

we presume counsel's performance was not deficient.

Moore’s first issue is overruled.

SUFFICIENCY OF THE EVIDENCE

In three issues, Moore next challenges the sufficiency of the evidence to

support his convictions under Counts I-VII (Issue II), Counts VIII and IX (Issue

III), and Count X (Issue IV). Specifically, he contends T.M.'s testimony

regarding the instances of sexual abuse by Moore is not credible.

Standard of Review

The Court of Criminal Appeals has expressed our standard of review of

a sufficiency issue as follows:

When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App.
2017). This standard requires the appellate court to defer “to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at

Moore v. State Page 5
319. We may not re-weigh the evidence or substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). The court conducting a sufficiency review
must not engage in a “divide and conquer” strategy but must
consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of
facts or evidence, juries are permitted to draw any reasonable
inferences from the facts so long as each inference is supported by
the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757
(Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We
presume that the factfinder resolved any conflicting inferences
from the evidence in favor of the verdict, and we defer to that
resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to
the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Direct evidence and circumstantial evidence are
equally probative, and circumstantial evidence alone may be
sufficient to uphold a conviction so long as the cumulative force of
all the incriminating circumstances is sufficient to support the
conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App.
2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the
offense as defined by the hypothetically correct jury charge for the
case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge is one that “accurately sets
out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The “law as authorized by the indictment” includes the
statutory elements of the offense and those elements as modified
by the indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

Moore v. State Page 6
Further, convictions for sexual assault of a child and aggravated sexual

assault of a child are supportable on the uncorroborated testimony of the victim

alone. See TEX. CODE CRIM. PROC. art. 38.07(a); Martinez v. State, 178 S.W.3d

806, 814 (Tex. Crim. App. 2005) (noting that article 38.07 "deals with the

sufficiency of evidence required to sustain a conviction for" certain sexual

offenses). The State has no burden to produce any corroborating or physical

evidence. See Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st

Dist.] 2014, no pet.); see also Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—

Houston [1st Dist.] 2004) ("The lack of physical or forensic evidence is a factor

for the jury to consider in weighing the evidence."), aff'd, 206 S.W.3d 620 (Tex.

Crim. App. 2006).

Issues II and III

T.M., who was 29 years old at the time of trial, described a pattern of

sexual abuse by Moore starting when she was four years old until she was an

adult. T.M. said this pattern happened two to three times a week, always in

Moore’s room, and usually in the mornings when T.M.’s mother was not home.

Before T.M. turned 16 years old, the type of sexual abuse included sexual

touching by Moore, ejaculation by Moore on T.M., and sometimes, touching by

T.M.’s hand of Moore’s penis. T.M. recounted that once, however, when she

was six years old, Moore attempted to penetrate her vaginally while she was

Moore v. State Page 7
in the bathtub with her sister. However, he “split” her, causing her vagina to

bleed. He put a sibling’s diaper on her and told her to tell her mother that her

sister’s toenail cut her.

When she turned 16 years old, the abuse escalated to vaginal penetration

with Moore’s penis, which resulted in two terminated pregnancies. T.M.

described how Moore would summon her to his room with a secret knock. T.M.

also described further attempted assaults even after she married at 21 years

of age and moved out of the house.

Moore contends T.M’s testimony is unbelievable because there was no

direct evidence or any other evidence by the State to corroborate T.M.’s claims,

“almost everyone” of T.M.’s family testified that T.M. is not a truthful person,

T.M. had made allegations before and recanted, and T.M. had been committed

to a mental health facility, thus, the allegations were made out of a delusional

state.

The jury heard T.M.’s account of her repeated sexual abuse by Moore and

her acknowledgement that she recanted in the past. However, she asserted

she recanted not because the accusations were not true or that she was

delusional but because no one believed her and because the accusations were

causing drama in her family.

Many of her family members testified that, in their opinion, T.M. was

Moore v. State Page 8
untruthful. However, other witnesses, including family members, confirmed

various aspects of T.M.’s testimony. For example, Detective Clark

corroborated T.M.’s outcries going back to 1997, finding them consistent

throughout in spite of the recantations. Dr. Beyer, a psychiatrist with MHMR

who evaluated T.M. in 2006 and 2013 when she was sent to a mental health

facility, corroborated T.M.’s outcries in his treatment notes. T.M. made

contemporaneous outcries to a former high school boyfriend and his mother.

The boyfriend also testified to witnessing T.M. being summoned by a special

knock into Moore’s room. He then heard noises indicating sexual activity

coming from Moore’s room after T.M. entered it. Moore confirmed that he took

T.M. to a clinic to have two abortions without T.M.’s mother’s knowledge.

T.M.s’ mother confirmed seeing T.M. in a diaper when T.M. was six years old.

But, having found no injury, T.M.’s mother thought nothing more of it since

both T.M. and Moore said the sister’s toenail cut T.M.’s vagina.

Additionally, Dr. Beyer, Dr. Carter, the State’s testifying psychologist,

and Detective Clark all shared their expertise in the field of child sexual abuse,

explaining delayed outcry, recantation, and mental health issues common to

child sexual abuse. They each testified that T.M.’s actions and behaviors in

these areas were consistent with being the victim of sexual abuse. Dr. Carter

further testified that Moore’s actions and behaviors were consistent with child

Moore v. State Page 9
sexual predation.

It was the jury's duty as the sole factfinder to assess T.M.'s credibility

and to resolve any conflicts in the evidence or testimony. See Zuniga v. State,

551 S.W.3d 729 (Tex. Crim. App. 2018). We presume that the jury resolved

any conflicting inferences in favor of the verdict and defer to that resolution.

See Jackson v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). The jury determines the credibility of the witnesses and may believe

all, some, or none of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986).

Accordingly, after reviewing all the evidence in the light most favorable

to the jury's verdict, giving due deference to the jury's weight and credibility

determinations, we conclude that, on the evidence presented, a rational trier

of fact could have found the essential elements of each offense beyond a

reasonable doubt.

Moore’s second and third issues are overruled

Issue IV

In his fourth issue, Moore contends the evidence is insufficient to find

him guilty beyond a reasonable doubt of the offense of Prohibited Sexual

Conduct under Count X of the indictment. However, the jury acquitted Moore

on this offense.

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Accordingly, Moore’s fourth issue is overruled.

CONCLUSION

Having overruled each issue presented on appeal, we affirm the trial

court’s judgments.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: July 31, 2025
Before Justice Smith,
Justice Harris, and
Senior Justice Davis 1
Affirmed
Do Not Publish
CRPM

1 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by

assignment of the Chief Justice of the Supreme Court of Texas.

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