TEXARKANA, Texas - The Texas Court of Criminal Appeals has agreed to give a second look to a Bowie County child sex abuse case a lower appellate court reversed in December.
Cornell Ladell Witcher, 37, was found guilty in February 2020 of continuous sexual abuse of a child under 14 by the jury, sentenced to life in prison and assessed a maximum $10,000 fine. Under Texas law, a person commits the offense of continuous sexual abuse of a child under 14 if they engage in sexual misconduct with their victim two or more times during a period of 30 days or more. There is no parole for any sentence imposed for continuous sexual abuse of a child in the range of 25 to 99 years or life in prison.
The 6th District Court of Appeals in Texarkana issued an opinion Dec. 21 that found the state did not present enough evidence to support the conviction. The 6th's opinion found that while the state clearly established the abuse ended the day before the victim made an outcry to her older sister July 28, 2018, it failed to show that the abuse occurred over a period of 30 or more days.
The 6th sent the case back to the trial court noting that the 10-year-old victim's testimony supported multiple charges of aggravated sexual assault of a child and indecency with a child.
Assistant State Prosecuting Attorney John Messinger filed a petition for discretionary review with the state's highest criminal court which was granted Wednesday. If the Court of Criminal Appeals disagrees with the lower 6th Court of Appeals, Witcher's conviction could stand. If the Court of Criminal Appeals agrees with the lower appellate court, the case will go back to the trial court in Bowie County for further action.
The petition accuses the three-judge panel which comprises the 6th Court of Appeals of substituting its interpretation of the victim's testimony for that of the 12-member jury and of ignoring key evidence regarding the date when the sexual abuse of the victim began.
At trial, the victim testified that the abuse by Witcher, who had formerly dated an adult relative of the girl's and was renting a room in her family's home, began when her older brother went to jail. The older brother went to jail June 10, 2018, more than 30 days before the victim made an outcry of sexual abuse to her sister.
"The court of appeals found the evidence of the duration insufficient for two reasons. First, it held the date the victim's brother went to jail was not adequately identified. Second, it held that 'when' does not mean what everyone at trial thought it meant," the petition for review states.
The petition alleges that the 6th focused on some testimony about the duration of the sexual abuse and ignored other, more specific testimony. It further asserts that the 6th ignored testimony from the victim's adult sister that the victim "always" wanted to leave the house during the time period of June 10, 2018, to July 28, 2018.
The prosecutor's petition accuses the 6th of manufacturing the ambiguity it gave as cause in its opinion to send the case back to the trial court.
"The victim's answer was clear to everyone who was there. Not to the court of appeals, though. According to that court, the victim's testimony 'equally supports an inference that the abuse began on the very date her brother went to jail or that it began during that period of her life when her brother went to jail' because 'when' has various definitions," the petition states, quoting language from the 6th's opinion.
The petition alleges that the 6th failed to take the context of the victim's testimony into consideration and that it over-analyzed her words.
"That might be true if her words were stripped of all context, but that is not how language works. This case was about a crime of perverse compulsion and the opportunity created by the absence of the other adult male in the house," the petition for review states. "The victim was asked three times when the abuse started, and three times she said it started when that opportunity presented itself. Regular people representing the community would not draw equal inferences or have to speculate about what the victim meant when she said 'when.'"
Witcher's appellate counsel filed a response to the state's petition which adopts the opinion issued by the 6th. After considering both the petition and response, the Court of Criminal Appeals agreed to review the case.
Meanwhile Witcher is being held at the Telford Unit of the Texas Department of Criminal Justice in New Boston, Texas.