Bryant Kentrell Dotson v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00056-CR

BRYANT KENTRELL DOTSON,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2018-2101-C1

MEMORANDUM OPINION

Following a jury trial, Bryant Kentrell Dotson was convicted of continuous sexual

abuse of a young child and sentenced to thirty years in prison. See TEX. PENAL CODE ANN.

§ 21.02. In two issues on appeal, Dotson argues that the evidence was insufficient to

support his conviction and that the trial court reversibly erred by providing a coercive

Allen charge to the jury. See Allen v. United States, 164 U.S. 492, 510, 17 S. Ct. 154, 157, 41

L. Ed. 528 (1896). We affirm.
Sufficiency of the Evidence

In his first issue, Dotson argues that the evidence presented at trial was insufficient

to prove beyond a reasonable doubt that the alleged acts of sexual abuse occurred over a

period that was thirty or more days in duration. See TEX. PENAL CODE ANN. § 21.02(b)(1).

We disagree.

AUTHORITY

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

issues 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
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).
Dotson v. State Page 2
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).

DISCUSSION

The indictment alleged that Dotson committed the following acts of sexual abuse

against A.D between the dates of May 1, 2016 and September 1, 2018: causing A.D.’s

sexual organ to contact Dotson’s sexual organ and/or mouth; penetration of A.D.’s sexual

organ by Dotson’s finger; and/or Dotson’s hand touching A.D.’s genitals. See TEX. PENAL

CODE ANN. § 21.02(c). For the offense of continuous sexual abuse of a young child, the

jury is 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. Id. at §

21.02(d). However, the jury must unanimously agree that the defendant committed two

or more acts of sexual abuse during the required timeframe – a period that was thirty or
Dotson v. State Page 3
more days in duration. Id. Reviewing courts have held that juries may infer the duration

of time between the acts of sexual abuse from evidence of milestones or benchmarks, such

as school years, places where the child lived, or other life events. See, e.g. Michell v. State,

381 S.W.3d 554, 561-64 (Tex. App.—Eastland 2012, no pet.); Baez v. State, 486 S.W.3d 592,

595 (Tex. App.—San Antonio 2015, pet. ref’d); Perez v. State, 689 S.W.3d 369, 378 (Tex.

App.—Corpus Christi-Edinburg 2024, no pet.). On appeal Dotson argues that while

“[t]here is evidence that sexual abuse occurred in the ‘China Springs apartment’ and

evidence that sexual abuse occurred in the ‘Waco apartment,’” sufficient benchmarks did

not exist to permit the jury to infer that the acts of sexual abuse occurred over a period of

thirty or more days. We therefore limit our sufficiency analysis to the evidence relating

to the durational element of the offense of continuous sexual abuse of a young child.

Dr. Soo Battle, a child sexual abuse examiner with the Advocacy Center for Crime

Victims and Children, testified that she administered a sexual abuse exam on ten-year-

old A.D. on October 3, 2018. A copy of her report was admitted into evidence at trial and

was specifically requested by the jury for viewing during deliberations. In A.D.’s

examination with Dr. Battle, she reported that Dotson touched her “middle section” with

his hands inside of her clothing while she was living in China Spring. Using an

anatomical drawing, A.D. clarified that her “middle section” was her vagina. She recalled

that after the family moved to Waco, Dotson touched her vagina with his hands

“[s]ometimes in my mom’s room, the living room, or in my room” and penetrated her

Dotson v. State Page 4
vagina with his fingers “more than once.” A.D. also described Dotson touching her

vagina with his mouth “a couple of times” and with his penis “[m]ore than one time. A

lot.” A.D. reported to Dr. Battle that the last time Dotson touched her vagina was

approximately one week before she reported the sexual abuse to her mother.1

Relevant here, Dotson testified that he lived in China Spring with A.D. and her

family for approximately four to five months. They all subsequently moved into a one-

bedroom apartment with a family member in Waco, where the family slept in the living

room for five to eight months. In late 2016, according to Dotson, the family moved into

their own three-bedroom apartment in the same apartment complex. The record

indicates that the family was living in this Waco apartment when A.D. reported Dotson’s

sexual abuse to her mother in September of 2018.

An inference is defined as “a conclusion reached by considering other facts and

deducing a logical consequence from them.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim.

App. 2007). A.D. provided a “benchmark” for the last instance of sexual abuse by Dotson,

namely, that he touched her vagina approximately one week before her outcry to her

mother in September of 2018. Based on the timeline provided by Dotson’s testimony,

1We note that A.D.’s trial testimony differed in some respects from her statements to Dr. Battle during her
exam. During trial, A.D. agreed with the State that some of the details were difficult for her to remember.
For example, A.D. testified that Dotson touched her thighs and her breast in China Spring, but that he did
not touch any other part of her body in China Spring. However, Dotson does not contest the sufficiency of
the evidence supporting that acts of sexual abuse occurred in China Spring, arguing instead that the
evidence does not show when the acts of sexual abuse occurred rather than whether they occurred at all.
Further, we presume the jury resolved any conflicting inferences from the evidence in favor of the verdict.
Zuniga, 551 S.W.3d at 733.

Dotson v. State Page 5
thirty days or more would have passed between Dotson touching A.D.’s vagina while the

family was living at the home in China Spring and the last time Dotson touched A.D.’s

vagina in 2018. Viewing all of the evidence in the light most favorable to the verdict, the

evidence was sufficient to support a reasonable jury finding that Dotson committed two

of more acts of sexual abuse over a period of thirty days or more.

Accordingly, Dotson’s first issue is overruled.

Allen Charge

In his second issue on appeal, Dotson argues that the trial court reversibly erred

by providing an unduly coercive Allen charge to the jury during deliberations. We

disagree.

AUTHORITY

When a jury has declared itself deadlocked, the trial court may give a

supplemental “Allen charge” designed to remind the jury that if it is unable to reach a

verdict, a mistrial will result, the case will remain pending, and there is no guarantee that

another jury will find the issue easier to resolve. See Allen, 164 U.S. at 501; Barnett v. State,

189 S.W.3d 272, 277 n.13 (Tex. Crim. App 2006). Trial courts must be careful to phrase

and administer an Allen charge in a noncoercive manner. Barnett, 189 S.W.3d at 277 n.13.

The primary inquiry in determining the propriety of an Allen charge is its coercive effect

on juror deliberation “in its context and under all the circumstances.” Lowenfield v. Phelps,

Dotson v. State Page 6
484 U.S. 231, 237, 108 S. Ct. 546, 550, 98 L. Ed. 2d 568 (1988) (quoting Jenkins v. United

States, 380 U.S. 445, 446 (1965) (per curiam)).

DISCUSSION

The record indicates that the jury exited the courtroom to begin deliberations at

2:34 p.m. After sending out two notes requesting to view certain evidence, the jury sent

a note at 4:09 p.m. stating, “At this time we cannot come to a decision that all members

can agree to.” The trial court proposed a written Allen charge to the State and defense

counsel, which read as follows:

Ladies and Gentlemen of the Jury:

The Court has your note that you are indicating you are unable to reach a
verdict. In the interest of justice, if you could end this litigation by your
verdict, you should do so.

The Court does not mean to say that any individual juror should yield his
or her own conscience and positive conviction, but when you are in the jury
room, you should discuss this matter carefully, listen to each other, and try,
if you can, to reach a conclusion on the questions. It is your duty as a juror
to keep your mind open and free to every reasonable argument that may be
presented by your fellow jurors so that this jury may arrive at a verdict that
justly answers the consciences of the individuals making up this jury. You
should not have any pride of opinion and should avoid hastily forming or
expressing an opinion. At the same time, you should not surrender any
conscientious views founded on the evidence unless convinced of your
error by your fellow jurors.

If you fail to reach a verdict, this case may have to be tried before another
jury, then all of our time will have been wasted.

Accordingly, please return to your deliberations.

Dotson v. State Page 7
When the trial court asked the attorneys about objections to the proposed supplemental

charge, the following exchange occurred:

[Defense Counsel]: Well, I have some issues, Your Honor, with the last part
of it, that all of our time will be wasted.

The Court: Well, you can object to it, but I’m giving it.

[Defense Counsel]: Okay. I’m going to object to that last part of it.

The Court: Okay. “All of our time would have been wasted,” I’m leaving it
in.

The bailiff delivered the written Allen charge to the jury. After more than three hours of

additional deliberation, the jury reached its guilty verdict.

As he did in the trial court, Dotson takes issue on appeal with the inclusion of the

statement, “then all of our time will have been wasted.” Specifically, Dotson contends

that the notion of “wasting time” is uniquely coercive to jurors who were “all exposed to

the American work ethic” and its associated “stigma of ‘wasting time[.]’”

The State argues that Dotson failed to preserve his complaint that the Allen charge

was coercive. We agree. In order to preserve error for appellate review, a party must

present a timely objection to the trial court, state the specific grounds for the objection,

and obtain a ruling. See TEX. R. APP. P. 33.1(a). At trial, Dotson did not state his specific

ground for objecting to the supplemental charge (i.e., that it was coercive) or obtain a

ruling on his objection. Accordingly, Dotson did not preserve this error for review.

Dotson v. State Page 8
Even if Dotson’s complaint had been preserved, we find that the record here does

not indicate “under all the circumstances” that the Allen charge was unduly coercive. The

trial court did not give the charge prematurely, providing the supplemental charge only

after the jury indicated an inability to reach a verdict. The jury did not deliberate an

unduly short time after the supplemental charge was given, continuing for over three

additional hours and sending out multiple notes requesting to review specific portions

of testimony from the trial. Additionally, the supplemental charge encouraged the jurors

not to surrender any conscientious views founded on the evidence unless convinced of

error by fellow jurors. See West v. State, 121 S.W.3d 95, 109 (Tex. App.—Fort Worth 2003,

pet. ref’d). The jurors were also polled after the verdict was read, and each juror

confirmed that it represented his or her verdict. See Rosales v. State, 548 S.W.3d 796, 805

(Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). Further, at least one other appellate

court has found a similarly-worded Allen charge to be noncoercive. See Freeman v. State,

115 S.W.3d 183, 186-87 (Tex. App.—Texarkana 2003, pet. ref’d) (“If you fail to reach a

verdict, this case may have to be tried before another jury. Then all our time will have

been wasted.”).

Accordingly, we overrule Dotson’s second issue on appeal.

Conclusion

Having overruled all of Dotson’s issues on appeal, we affirm the judgment of the

trial court.

Dotson v. State Page 9
STEVE SMITH
Justice

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Opinion delivered and filed February 20, 2025
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