No. 14-10-00468-CR
Opinion filed April 12, 2011. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause No. 1085775.
Panel consists of Justices BROWN, BOYCE, and JAMISON.
MARTHA H. JAMISON, Justice.
Appellant Claude Hunter appeals his conviction for the felony offense of aggravated sexual assault of a child. After the jury found him guilty, the trial court assessed punishment at incarceration in the Institutional Division of the Texas Department of Criminal Justice for thirty-five years. In one issue, appellant claims the evidence was legally and factually insufficient to support his conviction. We affirm.
Background
J.E. was born in 1991. When J.E. was a child (before the age of fourteen), she lived with her paternal grandmother during the week and would visit her mother, father, or maternal grandmother on weekends. When J.E. was around the age of seven, her mother began a relationship with appellant. During the time when J.E. was between the ages of seven and twelve, she visited appellant's house because of that relationship. On weekends, J.E. would visit appellant's house with her siblings, as well as appellant's children. J.E. testified that, when appellant and her mother "were talking," she visited appellant's home about two weekends a month. Although she could not recall the address of appellant's home, she was able to name the street, describe the area of town where the house was located, and draw a diagram of the inside of the house. J.E. told the jury that when she was eight or nine years old, she was at appellant's home watching television, while the other children played outside in the front yard. Appellant and J.E. were the only people in the house. Appellant called J.E. into his bedroom, where he sat her on the bed and closed the door. Appellant laid J.E. back on the bed, pulled down her skort and underpants, and then penetrated her vagina with his penis in a repeated motion. Appellant eventually stopped, but before he left the room he told J.E. not to tell anyone, that it could happen again, and to act normal. Appellant further told her that, if anyone saw her exit the bedroom, she should say she was using the bathroom or taking a nap. J.E. stated that she was shocked and in disbelief; she knew that what appellant did was wrong but did not feel she could do anything. J.E. then returned to the den and tried to act normal. J.E. did not immediately tell anyone about what happened in appellant's bedroom. She explained that she felt like she could get in trouble if she told, and she also did not want it to happen again. Whenever she saw appellant after the incident, she avoided being alone with him, or she would stay at home. J.E.'s father told the jury that he and J.E. had a close relationship and that they talked often while she was growing up. J.E.'s father noticed that J.E., around the age of ten or eleven, became more distant. During this time frame, J.E.'s grandmother (with whom J.E. lived) prompted J.E.'s father to ask J.E. whether anyone had touched her or done anything inappropriate. J.E.'s grandmother, a school nurse, had noticed changes in J.E. J.E.'s father asked J.E. several times whether anyone had done anything inappropriate. Each time, J.E. became quiet and started crying, but she would not say anything. J.E.'s father believed something had happened to her, but he could not confirm it at that time. When J.E. was fourteen years old, she began having trouble at school. Her father called her to question her about the trouble and in that conversation J.E. told her father that appellant had sexually abused her as a child. J.E. explained that she felt, by that time, nothing could happen to her if she told her father about the abuse. The next day, J.E.'s father took J.E. to the police station, where she filed a complaint. The police officers took her statement and referred J.E. to the Children's Assessment Center for a forensic interview. The interviewer testified at trial that J.E. knew the difference between the truth and a lie and was open and friendly during the interview. When discussing the alleged abuse, J.E. became tearful and would not look directly at the interviewer. It is common for children to become uncomfortable when talking about an alleged abuse. No medical examination was performed and no DNA evidence was collected. Appellant denied sexually abusing J.E. Appellant told the jury that J.E. had never been inside his home, and that an electrical fire destroyed the home on December 15, 1999. Appellant admitted that J.E.'s diagram of the inside of the home was "pretty good," but he believed she must have obtained the information from her mother. Appellant stated that he did not have any problems with J.E. and had never disciplined her. He did not know why J.E. alleged that he sexually abused her when she was a child. Appellant admitted that he had previously been convicted of assaulting the mother of three of his children. Sufficiency of the Evidence
In his sole issue, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. While this appeal was pending, the Court of Criminal Appeals held that only one standard should be used in criminal cases to evaluate the sufficiency of the evidence to support findings that must be established beyond a reasonable doubt: legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.); id. at 926 (Cochran, J., concurring). Accordingly, we review the sufficiency of the evidence in this case under a rigorous and proper application of the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1970). Brooks, 323 S.W.3d at 906; Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.-Houston [14th Dist.] 2010, no pet.). When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899. This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by re-evaluating the weight and credibility of the evidence. Id. at 901-02; see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the fact finder's resolution of conflicting evidence unless the resolution is not rational. Brooks, 323 S.W.3d at 902 n. 19, 907. A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means, and the victim is younger than fourteen years of age. Tex. Penal Code § 22.021(a)(1)(A)(i) (2)(B) (Vernon Supp. 2010). Aggravated sexual assault is a first degree felony offense. Id. at § 22.021(e). A child complainant's testimony, standing alone, will support a conviction for aggravated sexual assault. See Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd); see also Tex. Code Crim. Proc. art. 38.07 (conviction under Section 22.021 is supportable on the complainant's uncorroborated testimony). "Further, there is no requirement that the victim's testimony be corroborated by medical or physical evidence." Newby v. State, 252 S.W.3d 431, 437 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd) (citing Garcia v. State, 563 S.W.2d 925, 298 (Tex. Crim. App. 1978)). J.E.'s testimony provided evidence of each of the elements of the felony offense. J.E. testified that, when she was age eight or nine, appellant caused his penis to penetrate her vagina in a repeated motion for ten or fifteen minutes. The testimony of J.E., standing alone, was sufficient to support appellant's conviction. See Jensen, 66 S.W.3d at 534. Further, J.E.'s father noticed J.E. become more distant around the age of ten, and when he asked her whether anyone had touched her or done anything inappropriate, J.E. would cry. He felt something had happened to J.E., but he could not confirm it at that time. J.E. did ultimately tell her father about the sexual abuse, though it was several years after the fact. This outcry statement from a child victim can be sufficient evidence to sustain a conviction for aggravated sexual assault. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991); Jensen, 66 S.W.3d at 534. The testimony provided by J.E. and her father, viewed in the light most favorable to the verdict, was sufficient to support appellant's conviction. Appellant argues that the evidence is insufficient because: (1) appellant denied sexually assaulting J.E., essentially making it a "swearing match;" (2) the State failed to provide any physical evidence or DNA link to appellant; (3) the State failed to provide any medical evidence from an examination of J.E.'s body; (4) J.E. admitted that she did not tell a CPS caseworker that appellant had sexually assaulted her when the caseworker was investigating her mother; and (5) J.E.'s delayed outcry of five years "destroys her credibility." We will address each of these contentions in turn. First, appellant is correct that the jury was presented with conflicting evidence with regard to the assault. J.E. testified that appellant committed the assault, and appellant denied doing so. The jury had to resolve this inconsistency. The jury was presented with evidence that J.E., who was eighteen at the time of trial, works at and attends Lone Star College. She is studying to be a teacher. During high school, she participated in choir and other extra-curricular activities, and was part of a part-time work program. In junior high, she received an academic award for good grades and achievements in school. At trial, she was able to draw a diagram of appellant's house and name all of appellant's children. The jury also heard that appellant earned certificates from Houston Community College and had worked as an activity director and as a cook. Appellant admitted that while he was married, he lived with a woman not his wife and had a relationship with J.E.'s mother. He further admitted that he had been convicted of felony assault on his girlfriend. While at first appellant said J.E.'s diagram looked nothing like his house, he later conceded on cross-examination that her memory of his house was pretty good. His explanation for J.E.'s memory of his house and children was that her mother must have given her the information. The jury was in the best position to view the witnesses, weigh all of the evidence, and decide whose testimony was credible. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (jury is the sole judge of the credibility of the witnesses and of the strength of the evidence). We must give due deference to the jury's determination. See Brooks, 323 S.W.3d at 901-02; Newby, 252 S.W.3d at 437. Second, we find appellant's argument regarding the lack of physical or medical evidence unpersuasive. There is no requirement that the victim's testimony be corroborated by medical or physical evidence. See Garcia, 563 S.W.2d at 928; Newby, 252 S.W.3d at 437. Given the amount of time that had passed between the assault and the outcry, physical evidence was not realistic. Third, we disagree with appellant's contention that J.E. admitted that she did not tell a CPS caseworker that appellant had sexually assaulted her when the caseworker was investigating her mother. At trial, J.E. stated that she recalled a CPS caseworker coming to her mother's home, and that she does not remember telling the caseworker about the assault by appellant. Importantly, J.E. also stated that she did not recall whether the CPS visit occurred before or after the assault. There was no other evidence presented as to the date of the visit by the CPS worker. Even if the visit had occurred after the assault, however, a failure to tell the caseworker would, again, be a factor for the jury to consider in weighing the evidence. Fourth, we do not find appellant's argument persuasive with regard to J.E.'s delayed outcry. It is true that J.E. waited several years before she told anyone of the assault. A delay in outcry, however, is simply one factor for the jury to consider in making its determination. J.E. explained to the jury why she waited to say anything about the assault. We defer to the trier of fact's determination of J.E.'s credibility and the weight to be given her testimony in light of the delay in outcry. See Brooks, 323 S.W.3d at 901-02; Fuentes, 991 S.W.2d at 271. Appellant's arguments rest on evidentiary weight and credibility determinations that are reserved for the fact finder. The jury was entitled to resolve any inconsistencies and make credibility determinations in the State's favor. Giving due deference to the jury's weight and credibility determinations, we find that on the evidence presented, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 899. For the preceding reasons, we overrule appellant's sole issue. Conclusion
Having overruled appellant's sole issue, we affirm the judgment.