Opinion
NO. 12-14-00240-CR
05-11-2016
MARK ERIC EMANUEL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 3RD JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Appellant, Mark Eric Emanuel, appeals his convictions for two counts of indecency with a child and one count of sexual assault of a child. In one issue, Appellant challenges the sufficiency of the evidence to support his convictions. We affirm.
BACKGROUND
Ashley Lewis lived with her grandmother in Palestine, Texas, along with other family members including her uncle, Appellant; two cousins; and at least intermittently, her father. One of Appellant's roles in the household was to insure the grandchildren did their household chores, cleaned their rooms, and obeyed his mother, their grandmother.
A pseudonym.
On the pretext of going to get some things for Ashley to take with her to visit her mother during spring break, Appellant took Ashley riding in a car. Appellant turned the car onto a side road, pulled out his penis, and instructed Ashley to move her hand up and down on his penis until he ejaculated.
On another occasion, Appellant came into Ashley's room where she was laying on her bed. Appellant told her to move her shorts out of the way so he could see her private area. He told her it looked "fat and pretty."
Finally, Ashley testified that Appellant called her into his bedroom as she was on her way to take a shower. He made her take off her shorts and underwear and lie on the floor. He then attempted to penetrate her vagina with his penis bringing his penis in contact with her sexual organ. Ashley believed he did not complete the act, because he heard someone approaching the house.
Ashley told no one at the time, because she thought no one would believe her. However, several months later, she told one of her cousins. On her cousin's insistence, they went to see Ashley's aunt, Appellant's sister. The aunt called Appellant and other family members, and a family meeting resulted at which another uncle, Appellant's brother, presided. All the adults told Ashley she was lying and that she should keep her mouth shut. The uncle told her that if she told anyone, she would be thrown out of the house.
Several months later, her aunt told Ashley that since she persisted in being unhappy, she should go live with her mother in Florida. One of her mother's childhood friends came and picked Ashley up at another house where she stayed for a short time after she had to leave her grandmother's house. When her mother's friend heard Ashley's story about the abuse, she insisted on taking her to the police. After a short police interview, she was sent to a SANE nurse, Jessi Jones, for a physical examination, and then on to the Child Advocacy Center where Rachel Self conducted a forensic interview of Ashley.
Because one year had passed since the alleged abuse occurred, the SANE examination yielded no specific evidence that confirmed Ashley's story. However, the examiner testified that her findings were consistent with the history that Ashley gave her.
The video recording of Ashley's interview at the Child Advocacy Center was shown to the jury.
The defense witnesses included Appellant's mother, sister, brother, niece, and a former girlfriend. All testified that they did not believe the accusations because Ashley was not believable and the acts alleged were not in keeping with Appellant's good character.
The jury found Appellant guilty of two counts of indecency with a child and one count of sexual assault of a child. The jury assessed Appellant's punishment at imprisonment for ten years and a $5,000 fine on each count, but recommended the sentences, including the fines, be suspended. The trial court followed the jury's recommendation, suspended the imposition of sentence, and placed Appellant on community supervision.
SUFFICIENCY OF THE EVIDENCE
In one issue, Appellant contends the evidence is insufficient to support the jury's verdict.Standard of Review
Appellant argues, in part, that the evidence is factually insufficient to support his convictions. "We do not review factual sufficiency of the evidence to support a jury's finding on the elements of a criminal offense that the State is required to prove beyond a reasonable doubt." Lucio v. State, 351 S.W.3d 878, 895 (Tex. Crim. App. 2011). --------
An appellate court views all of the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The testimony of the child victim is sufficient to support a conviction for indecency with a child or sexual assault of a child, and corroboration of that testimony is not required. TEX. CODE CRIM. PROC. ANN. § 38.07(a), (b)(1) (West Supp. 2015); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005). The fact finder is entitled to judge the credibility of the witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Applicable Law
A person commits indecency with a child if, with a child younger than seventeen years of age, whether the child is of the same or opposite sex, the person, with the intent to arouse or gratify the sexual desire of any person, exposes any part of the person's genitals knowing the child is present. TEX. PENAL CODE ANN. § 21.11(a)(2)(A) (West 2011). A person also commits indecency with a child if the person causes the child to expose the child's anus or any part of the child's genitals. TEX. PENAL CODE ANN. § 21.11(a)(2)(B) (West 2011).
A person commits sexual assault of a child if the person intentionally or knowingly causes the female sexual organ of a child, who was then and there younger than seventeen years of age and not the spouse of the defendant, to contact the sexual organ of the actor. TEX. PENAL CODE ANN. § 22.011(a)(2)(C) (West 2011). Discussion
Appellant points out that only Ashley could testify to facts supporting the allegations against him. He argues that there was no physical evidence that might lend credence to her accusations. Appellant, on the other hand, presented an array of family members who testified to Ashley's lack of credibility. Some of the relatives testified that Ashley wanted to go to Florida to live with her mother. This, they believed, was her motive for concocting a tale of sexual abuse against her grandmother's enforcer, Appellant. Grandmother told the jury that her son was not even around the house when the acts were alleged to have occurred.
Ashley was eighteen years of age before she had the opportunity to tell a jury about the abuse she endured when she was fourteen. She had been interviewed by a Palestine detective, a forensic interviewer, and an investigator for Child Protective Services, all of whom testified. The State played a video of her forensic interview conducted one year after the events occurred. There were only minor inconsistencies between what she related to the jury and what she told others.
Ashley denied that she had wanted to go to Florida. She made good grades and participated in three sports. Her grandmother's home was the only home she had known for nine years. She said that before Appellant began sexually abusing her, she was happy to be living with a grandmother who loved her, and sharing a room with her cousin, who was like a sister to her.
She mentioned these events to no one for six months. When she told her cousin and roommate, it resulted in the convocation of a family meeting. The jury would have been justified in believing from the evidence that the purpose of the meeting was not to discover the truth. Rather, it was to protect Appellant from prosecution by frightening his accuser into silence. Ashley was told to quit lying and keep quiet or she would be thrown out of the house. She told no one for another six months until she finally called her mother in Florida after her aunt invited her to leave. Her conduct was not consistent with the ulterior motive several of her relatives ascribed to her. If her purpose was to leave the only home she could remember and flee to Florida, it was reasonable for the jury to believe that she would have made outcry sooner. She would not have waited a year before telling her mother in Florida.
Half of the witnesses who testified for Appellant also attended the family conference. All testified that they did not believe Ashley, because Appellant is a good man and would not do such things. Most testified that Ashley was not a truth teller. Their belief in her lack of credibility, however, appears to have originated with Ashley's accusations.
It is the jury's province to determine the credibility of the witnesses and the weight to be given their testimony. Chambers, 805 S.W.2d at 461. The jury can choose to believe all, some, or none of the witnesses' testimony. Id. The jury believed Ashley.
The evidence is sufficient to support Appellant's conviction. Appellant's sole issue is overruled.
DISPOSITION
Having overruled Appellant's sole issue, we affirm the judgment of the trial court.
BILL BASS
Justice Opinion delivered May 11, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.
(DO NOT PUBLISH)
JUDGMENT
Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 31159)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Bill Bass, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.