Jacob Earl Shirejian v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00058-CR

Jacob Earl Shirejian, Appellant

v.

The State of Texas, Appellee

FROM THE 483RD DISTRICT COURT OF HAYS COUNTY
NO. CR-21-1618-A, THE HONORABLE TANNER NEIDHARDT, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Jacob Earl Shirejian was charged with one count of continuous sexual

abuse of a young child, two counts of indecency with a child by contact, and two counts of

aggravated sexual assault of a child. See Tex. Penal Code §§ 21.03, 21.11, 22.021. After the

State rested its case, it abandoned Count I—the continuous sexual abuse charge—and proceeded

on the other four counts. The jury found Shirejian guilty on all four remaining counts. On

appeal, Shirejian challenges the legal sufficiency of the evidence to support his conviction for

Count II—indecency with a child by contact—which alleged that he had “with intent to gratify

the sexual desire of any person, caused the hand of [Carly 1], a child under the age of 14, to

contact his sexual organ.” The State concedes that the evidence is insufficient to support the

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Because the victim was a minor at the time of the offenses, we will refer to her by a
pseudonym and to her family members other than Shirejian by their connection to her to protect
her privacy. See Tex. R. App. P. 9.10(a)(3).
challenged conviction. After a thorough examination of the entire record, and for the reasons

detailed below, we agree and reverse the judgment of conviction for Count II. Shirejian also

points out a clerical error in the judgments of conviction for Counts III and V. We modify those

two judgments to correct the clerical error in each and we affirm the trial court’s judgments for

Counts III and V as modified. No issues have been raised regarding Shirejian’s conviction for

Count IV.

BACKGROUND

Carly, who was eighteen years old at the time of trial, testified that her stepfather, 2

Shirejian, had sexually abused her when she was younger. Carly was about five or six years old

when she and her mother moved in with Shirejian. She testified that when she was six or seven

years old, she and Shirejian were watching football in the bedroom of the small family home

when Shirejian began rubbing his penis on her anus. Another time when she was six or seven

years old, Shirejian took her to his bedroom, pulled down “whatever he was wearing,” and

“made [her] put [her] mouth on his penis.” Multiple times while they lived in that same house,

Shirejian sat on a recliner with Carly in his lap while he was “erect,” and kissed her and licked

her ear. She testified that she knew he was erect because her “lower half” could feel his penis

through his and her clothing while she sat on his lap. She explained that she “would just sit

there.” She testified that another time, she was sleeping in Shirejian’s bed and when she woke

up, she was “sitting on top” of him facing him, but when asked if she “could feel him erect” like

the time on the recliner, she replied that she could not remember.

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Although Shirejian and Carly’s mother were never married, Carly and her family
members, including Shirejian, all referred to Shirejian as her stepfather.
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Carly testified that in the fourth grade and after they had moved to a different

house, Shirejian sat with her on the couch while she was playing a video game. He started

“being really touchy with [her]” and called her “pet names, like, baby.” He was watching “adult

porn” on his phone. She testified that she did not remember a lot of details from that incident but

that he was “grabbing onto [her] a lot and trying to do stuff to [her].” She shoved him away and

went to her room. On cross examination, Carly clarified that she did not touch his penis during

this incident. Another time, while Carly was showering, Shirejian moved the shower curtain and

looked at her while he was peeing. She testified that all of the abuse occurred between when she

was six or seven years old and in the fourth grade.

Carly testified that when she was fifteen years old, she messaged her older sister

and told her about the incidents of sexual abuse. Screenshots of the messages were admitted into

evidence. In the text messages Carly told her sister that Shirejian had “tried to sexually assault

[her] when [she] was 6” years old. She texted that the first time the abuse occurred, “he would

just kiss [her] neck and [she] would just lay there.” She explained in the text that he had pulled

down his pants and “rubbed his thing against [her] hole.” She went on to tell her sister that

“another time he made [her] suck it.” She also described the shower incident. She described

another time in which she woke up in the middle of the night and he put her on top of him and

“tried to make [her] ride him.” She also texted her sister about a time, or times, that he would

put her on his lap in the living room and “touch [her] and stuff and lick [her] ear or something.”

She told her sister in the texts that the last incident occurred when she was in the fourth grade

and Shirejian was next to her while she played a video game and was watching porn on his

phone while calling her “weird pet names” and trying to touch her. She explained that she

pushed him away and ran to her room.

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Carly’s older sister testified regarding the text messages Carly had sent her about

three years prior to trial regarding the abuse. The night after Carly messaged her about the

abuse, Sister showed the messages to their mom. Carly’s mother testified that she found out

about the allegations by reading the text messages. Mother then took her daughters to her

father’s house where she called the police. Detective Jerritt Bean testified that when he was a

patrol officer, he answered Mother’s 911 call and called CPS. Brandon Pendleton, a forensic

interviewer and family advocate, testified that he interviewed Carly at a child advocacy center

following her outcry.

After this testimony, the State rested and abandoned Count I, continuous sexual

abuse. Shirejian testified in his own defense and denied all the allegations.

After hearing all the evidence, the jury found Shirejian guilty of Counts II and III,

second-degree indecency with a child by sexual contact; and Counts IV and V, first-degree

aggravated sexual assault of a child. See Tex. Penal Code §§ 21.11(a)(1), (d), 22.021. The Trial

Court sentenced him to eight-years’ imprisonment for Counts II and III and eighteen-years’

imprisonment for Counts IV and V, to be served consecutively. Id. §§ 12.32, 12.33, 21.11(d),

22.021(e). Shirejian appealed.

INSUFFICIENT EVIDENCE

Shirejian contends that the evidence is insufficient to support his conviction in

Count II for indecency with a child by contact.

The sufficiency of the evidence is measured by the elements of the offense as

defined in a hypothetically correct jury charge, which is “one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of proof or

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unnecessarily restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). “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.”

Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018) (citing Jackson v. Virginia,

443 U.S. 307, 319 (1979)). “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.’” Id. (quoting

Jackson, 443 U.S. at 319). “We may not re-weigh the evidence or substitute our judgment for

that of the factfinder.” Id. (citing Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007)). Although factfinders “may not speculate about the meaning of facts or evidence,” they

are permitted to “draw any reasonable inferences from the facts so long as each inference is

supported by the evidence presented at trial.” Id. (citing Cary v. State, 507 S.W.3d 750, 757

(Tex. Crim. App. 2016); 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.” Id. (citing Merritt v. State, 368 S.W.3d 516, 525 (Tex.

Crim. App. 2012)). This is because the factfinders are “the exclusive judges of the facts, the

credibility of the witnesses, and the weight to be given to the testimony.” Id. (citing 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

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support the conviction.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.

App. 2015)).

A person commits the offense of indecency with a child by contact if the person

engages in sexual contact with a child younger than seventeen years of age or causes the child to

engage in sexual contact. Tex. Penal Code § 21.11(a)(1). As relevant here, “sexual contact” is

any touching of any part of the body of a child, including touching through clothing, with the

anus, breast, or any part of the genitals of a person if committed with the intent to arouse or

gratify the sexual desire of any person. Id. § 21.11(c). Regarding this offense, the indictment

alleged that Shirejian had “with intent to gratify the sexual desire of any person, caused the hand

of [Carly], a child under the age of 14, to contact his sexual organ.” The court’s charge

instructed the jury to find him guilty of Count II indecency with a child “as charged in Count II

of the indictment” if the jury found beyond a reasonable doubt that Shirejian had “with the intent

to arouse or gratify the sexual desire of the defendant, cause[d] the hand of [Carly], a child

younger than 14 years of age, to contact his sexual organ.”

As detailed in the Background section above, no witness testified, and no

evidence supports that Carly’s hand ever made contact with Shirejian’s “sexual organ.” In its

appellate brief, the State agreed that there was no evidence presented that Carly’s hand ever

made contact with Shirejian’s “sexual organ.” We have thoroughly examined the record, and we

agree. Shirejian’s sufficiency issue challenging his conviction for indecency with a child in

Count II is sustained. The judgment in cause number CR-21-1618-A Count II convicting

Shirejian of indecency with a child by sexual contact is reversed, and Shirejian is ordered

acquitted on that offense. See Carlson v. State, 71 S.W.3d 524, 528 (Tex. App.—Austin 2002,

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no pet.) (reversing and ordering acquittal when State conceded evidence was insufficient and

appellate court agreed after examination of record).

CLERICAL ERROR IN JUDGMENTS

Shirejian contends—and the State agrees—that the trial court’s judgments for

Counts III and V contain an error and requests that we modify the judgments to correct the

errors. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State,

813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc) (explaining that “[a]ppellate

courts have the power to reform whatever the trial court could have corrected by a judgment

nunc pro tunc where the evidence necessary to correct the judgment appears in the record”). The

judgment of conviction for Count III currently states that the “Date of Offense” was

“09/19/2011.” According to both the indictment and the Court’s Charge, the offense date for

Count III should read “09/19/2014.” The judgment of conviction for Count V, currently states

that the “Date of Offense” was “09/19/2013.” According to both the indictment and the Court’s

Charge, the offense date for Count V should read “09/19/2011.” We sustain Shirejian’s issues

regarding the clerical errors in the judgments of conviction for counts III and V. Thus, we

modify the judgment for cause number CR-21-1618-A Count III to replace the text under “Date

of Offense” to read “09/19/2014” and modify the judgment for cause number CR-21-1618-A

Count V to replace the text under “Date of Offense” to read “09/19/2011.”

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CONCLUSION

Having sustained Shirejian’s issues, we reverse the judgment of conviction in trial

court cause number CR-21-1618-A Count II and order Shirejian acquitted on that offense and we

modify the judgment for cause number CR-21-1618-A Count III to replace the text under “Date

of Offense” to read “09/19/2014” and modify the judgment for cause number CR-21-1618-A

Count V to replace the text under “Date of Offense” to read “09/19/2011.”3

__________________________________________
Gisela D. Triana, Justice

Before Justices Triana, Theofanis, and Crump

Modified and as Modified Affirmed in Part, Reversed in Part

Filed: October 9, 2025

Do Not Publish

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No issues have been raised regarding Count IV.
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