The 6th Court of Appeals rejected the appeal of Kevin Leray Henderson, 45, who was convicted by a jury and sentenced by 115th District Judge Lauren Parish in Gilmer as a habitual offender on May 16, 2012.
Henderson was charged with committing the crime Sept. 30, 2011.
“The facts of the case involved the defendant exposing his genitals to a young child at an apartment complex in Gilmer. The mother of the child saw the act by the defendant, grabbed her child and drove to the Gilmer Police Department,” Upshur County District Attorney Billy Byrd said in a news release.
After the jury convicted Henderson, he elected to have Judge Parish preside in the trial’s punishment phase, Byrd said. The defendant admitted two other felony enhancements, and his sentence was within the punishment range of 25 to 99 years or life in prison for a habitual offender.
Gilmer attorney Dwight Brannon represented Henderson at trial, and Gilmer lawyer Tim Cone filed the appeal. Assistant District Attorney Natalie Miller represented the State on appeal.
Writing for the Appeals Court, Justice Jack Carter said in a 12-page opinion that Henderson challenged “the legal sufficiency of the evidence and the admission of evidence concerning an extraneous offense at the guilt/innocence stage of trial.”
Carter said “Henderson’s sole defense at trial was that he lacked knowledge of the child’s presence.” On appeal, Henderson alleged that the evidence he did know she was there was inadequate—and that the court also erred by admitting evidence of another offense.
The child’s mother testified at trial that she found her pre-kindergarten age daughter looking up at an apartment from the Hidden Bend Apartments’ parking lot, and that she (the mother) observed Henderson performing a lewd act at a doorway, Carter wrote.
When the mother screamed, Henderson came down from the apartment and said, “Y’all didn’t see anything,” the justice added.
The prosecution also “introduced evidence of an extraneous offense” as a girl under age 17 who lived at the complex testified she had observed Henderson performing the lewd act in a doorway on two occasions, Carter wrote.
The court found that evidence would allow “a reasonable jury. . . (to) infer that Henderson” knew a child was present, Carter wrote. And while Henderson argued that citing the extraneous offense was excessively “prejudicial,” the state argued “the incident was admissible to prove intent,” Carter added.
“The extraneous offense evidence was admissable to prove the sole disputed issue at trial—knowlege that a child was present,” the justice wrote.
Byrd expressed gratitude to the jury, and to “Judge Parish for a strong and deserved punishment.” The Gilmer Police Department probed the crime, with Roxanne Warren as lead investigator, the district attorney said.