Nos. 05-08-01332-CR, 05-08-01333-CR
Opinion Filed June 22, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F07-49975-TW and F08-00910-QW.
Before Justices MOSELEY, RICHTER and FRANCIS.
Opinion By Justice RICHTER.
A jury convicted appellant of sexual assault and aggravated assault and assessed punishment, enhanced by two prior convictions, at twenty-five years confinement in the sexual assault case and thirty years confinement in the aggravated assault case. In four issues, appellant argues he is entitled to a new trial because the evidence is factually insufficient to support his conviction. We resolve appellant's issues against him and affirm the trial court's judgments.
BACKGROUND
On the afternoon of March 14, 2007, appellant was selling drugs on the sidewalk near a gas station and convenience store located at the corner of Harry Hines and Empire Central, in Dallas, Texas, while his girlfriend of two weeks, Dominique Yarbrough, sat on the sidewalk nearby. Appellant was stopped by the police twice that day. After police stopped appellant the first time, he hid his drugs in Yarbrough's mouth. When the police stopped the second time, Yarbrough began walking back toward their apartment. Appellant told her to come back because he thought her walking away made them look suspicious. She kept walking and appellant began hitting her from behind with his fist. He hit her on the crown of her head, her face, and eyes, knocking her unconscious. She was unconscious until some time the next day. When Yarbrough awoke on March 15th, she was lying on the floor of appellant's bedroom with blood on her face. Appellant was on top of her. He forced her to perform oral sex. He also forced her to have vaginal and anal sex, while hitting her with his fists on both sides of her face. After appellant stopped, Yarbrough washed the blood off her face and took a shower. When she got out of the shower, appellant hit her again and forced his penis inside of her vagina and anus. Appellant would not let Yarbrough leave to get medical help, even though she was in great pain, her face was swollen, and she had liquid coming out of her ears. Instead, appellant made her walk with him to the gas station so he could sell drugs. When they arrived at the gas station, Yarbrough went into the convenience store and asked for help but no one was willing to assist her. Appellant then told her to go back to the apartment. When she got back to the apartment, she asked their roommate, Eric White, for help. White found a neighbor to take Yarbrough to a women's shelter where she was given clean clothes. She was later taken to the Parkland Hospital Emergency Room on the evening of March 16th. When Yarbrough arrived at the Parkland Hospital emergency room, she was crying, seemed very afraid, her face was swollen and bruised, and fluid was coming out of one ear. Parkland Hospital called the police. Yarbrough told officers that appellant was the person who hurt her. She also provided a description of appellant, the location of the gas station, and the address of appellant's apartment. The police went to appellant's apartment and arrested him. Appellant was charged with aggravated assault and aggravated sexual assault and entered a plea of not guilty to both charges. The jury found appellant guilty of sexual assault and aggravated assault, sentencing appellant to twenty-five years confinement in the sexual assault case and thirty years confinement in the aggravated assault case to run concurrently. This appeal followed. FACTUAL SUFFICIENCY OF THE EVIDENCE
In appellant's first three issues, he contends the evidence is factually insufficient to support his conviction for aggravated assault because the State did not prove (i) appellant used his fists as a deadly weapon, (ii) complainant was assaulted on March 14, 2007, and (iii) complainant was assaulted by appellant. In his fourth issue, appellant argues the facts are insufficient to support his conviction for sexual assault because the State did not prove appellant sexually assaulted complainant. A. Standard of Review
When reviewing a challenge to the factual sufficiency of the evidence, we consider all of the evidence in a neutral light. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009). Evidence is factually insufficient if "the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust." Id. A clearly wrong and unjust verdict occurs when the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). We substitute our judgment for the factfinder's when considering credibility and weight determinations, but only to a limited degree. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We must give almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). It is also the sole province of the jury to resolve conflicts in witnesses' testimony. See id. at 706 ("[A]n appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge."). B. Applicable Law
Appellant was charged with intentionally, knowingly and recklessly causing bodily injury to Dominique Yarbrough by striking her in the head with his hand, using a deadly weapon (his hand) during the commission of the assault. A person commits the offense of assault if the person intentionally causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2009). A person commits the offense of aggravated assault if the person causes serious bodily injury to another, or uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.02(a)(1), (2) (Vernon Supp. 2009). "`Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2009). A deadly weapon is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009). A hand or fist is not a deadly weapon per se, but may become a deadly weapon if used in a manner capable of causing death or serious bodily injury. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983). In determining whether a hand or fist is a deadly weapon, the jury may consider all of the evidence presented, including "the words of the accused, the intended use of the weapon, the size and shape of the weapon, the testimony of the victim that she feared for her life, the severity of wounds inflicted, and testimony as to the weapon's potential for deadliness." Bui v. State, 964 S.W.2d 335, 343 (Tex. App.-Texarkana 1998, pet. ref'd); see also Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978); Bethel v. State, 842 S.W.2d 804, 807 (Tex. App.-Houston [1st Dist.] 1992, no pet.). Appellant was also charged with intentionally and knowingly causing penetration of the female sexual organ and mouth and anus of Dominique Yarbrough without her consent by means of his sexual organ. A person commits the offense of sexual assault if the person intentionally or knowingly "causes the penetration of the anus or sexual organ of another person by any means, without that person's consent" or "causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent." Tex. Pen. Code Ann. § 22.011(a)(1)(A), (B) (Vernon Supp. 2009). A sexual assault is without the consent of the other person if the actor forces the other person to submit or participate by the use of physical force or violence. Id. at (b)(1). C. Evidence
The State's evidence consists of Dominique Yarbrough's testimony that appellant hit her in the head, causing her to lose consciousness; Yarbrough's testimony that appellant penetrated her mouth, vagina and anus with his penis without her consent; police testimony detailing their investigation of Yarbrough's complaints and appellant's subsequent arrest; medical testimony regarding the sexual assault examination and injuries suffered by Yarbrough; and forensic testimony linking appellant to the crime scenes and the sexual assault of Yarbrough. Dominique Yarbrough
At trial, Dominique Yarbrough testified she had been living with appellant for a week or two in an apartment they shared with Eric White. On March 14, 2007, Yarbrough and appellant went to a gas station and convenience store located at the corner of Harry Hines and Empire Central so appellant could sell drugs. Yarbrough testified that appellant acted "real different" that day and she suspected he was using drugs. Appellant was stopped by the police twice that day. After the police stopped to talk to appellant the first time, he hid his drugs in Yarbrough's mouth. When the police stopped appellant the second time, Yarbrough began walking back toward their apartment. Appellant told Yarbrough to come back because he thought her walking away made them look suspicious. She turned to continue walking toward the apartment and he started hitting her from behind, "really hard, like I was a man." He hit her on the crown of her head, her face, and eyes, knocking her unconscious. The next thing Yarbrough remembered was waking up the next day on the bedroom floor of appellant's apartment. Yarbrough testified she was unconscious from 7:00 or 8:00 pm on March 14 until some time during the day on March 15. Yarbrough testified that when she awoke on March 15, she had blood on her face and appellant was on top of her. Appellant grabbed her ponytail and ordered her to give him oral sex, which she did because she was scared he would hit her some more. Appellant then penetrated her vagina with his penis. When she told him to stop because she was on her period, Appellant hit her with his fist on both sides of her face and told her he was going to make her return to prostitution. She tried to squirm away from appellant but he pinned her upper arms down. Appellant then rolled her over and penetrated her anus with his penis. Yarbrough testified that appellant hit her on the back of the head with his fist when he was having anal sex with her because she would not stop moving. After appellant stopped, Yarbrough washed the blood from her face and took a shower. Yarbrough testified that appellant came into the bathroom, hit her again and ordered her back into the bedroom. Once she was back in the bedroom, appellant sexually assaulted her again. Appellant forced his penis into her vagina and then into her anus without her consent. After it was over, Yarbrough testified appellant would not let her leave the apartment to get help even though her face and ears were hurting really bad and she had liquid coming out of her ears. Several hours later, appellant made Yarbrough walk to the gas station and convenience store with him. Once they got to the gas station, appellant told her to sit down beside the convenience store. Appellant gave her a couple of dollars to get something to eat so she went into the store to buy food. Once inside, she asked someone to help her but they were not willing. Yarbrough testified appellant then told her to go back to the apartment. When she got to the apartment, she asked their roommate, Eric White, to help her. White found a neighbor to take her to a women's shelter. At the shelter, Yarbrough was given a change of clothes and taken to the Parkland Hospital Emergency Room. Yarbrough testified she was admitted to the hospital the evening of March 15. Yarbrough testified that Parkland Hospital conducted a rape examination and called the police. The police took photographs of Yarbrough at the hospital and at trial, she identified police photographs of her various injuries. She testified her eyes and face were bruised and swollen but the most painful injury was her ruptured ear drum. Police Testimony
The State presented testimony from Officer Seth Rosenberg, Officer Jennifer Rosenberg, Detective Joseph Allen, and Officer Shelby Nowak. Officer Seth Rosenberg and Officer Jennifer Rosenberg responded to a call from Parkland Hospital reporting a sexual assault. Officer Jennifer Rosenberg stayed at the hospital with Yarbrough while Officer Seth Rosenberg left to find appellant. Officer Nowak provided backup and assisted with the arrest of appellant. Detective Allen documented the crime scenes and collected physical evidence. Officer Seth Rosenberg testified that he and his partner, Officer Jennifer Rosenberg, interviewed Yarbrough at Parkland Hospital around 8:30 p.m. on March 16, 2007. He observed that Yarbrough was "beat up pretty bad" and had fluid coming out of her ear. Both officers testified that Yarbrough was disoriented, confused, and had difficulty relating what happened in chronological order. Both officers testified Yarbrough told them that she was hit and knocked out on March 14th, then forced to have oral, vaginal and anal sex on March 15th. Both officers testified Yarbrough told them appellant was the person who beat her up and sexually assaulted her. She gave the officers a physical description of appellant, the location of the gas station where she was hit in the head and knocked out, and appellant's apartment number. Officer Seth Rosenberg testified that when he arrived at the gas station, he observed blood on the sidewalk. He then went to the apartment, found appellant and placed him in custody. Officer Rosenberg testified he saw a lot of blood on the bedroom floor of the apartment. He also observed appellant's right hand was swollen and one of his knuckles was cut. Detective Allen testified that he collected evidence from two separate crime scenes. At the first crime scene, the gas station at 2200 Empire Central and Harry Hines, he conducted a visual scan of the sidewalk, the street, the fence line, a corrugated metal area, and the parking lot of the convenience store. He took photographs of blood on the sidewalk and collected swabs of that blood. He then went to the second crime scene at the Coco Apartments, Apartment 240, located at 2207 Empire Central where he conducted a search, visual and UV light scan of the apartment. He found blood on the bedroom floor of the apartment and collected swabs. He also collected some of appellant's clothing. He submitted the swabs to the Southwestern Institute of Forensic Science. Officer Nowak testified that while assisting with appellant's arrest, someone brought them clothing belonging to Yarbrough that had been collected by the women's shelter. Officer Nowak testified the clothing was turned over to the police physical evidence department. Officer Nowak also testified that a hand or fist can be considered a deadly weapon, depending on how hard the hit. Medical Testimony
Dr. Sunil Balgobin, Assistant Professor in the Obstetrics and Gynecology Department of the University of Texas Southwestern Medical Center, testified Yarbrough was first evaluated by the emergency room triage nurse who determined Yarbrough had a ruptured ear drum, and ordered a CT scan of her head. Yarbrough was then seen by a victim's intervention counselor who conducted a more in-depth interview with respect to the sexual assault. Finally, Yarbrough was examined by Dr. Balgobin who conducted a sexual assault examination and collected scrapings of fingernails, samples of saliva, samples, swabs and smears from the pelvic and rectal exams to test for assailant evidence. This evidence was preserved in a sexual assault kit which was submitted to Southwestern Institute of Forensic Science (SWIFS) for testing. Dr. Balgobin did not observe any vaginal injury but testified that in his experience, he sees vaginal injury in only 15 to 20 percent of sexual assault examinations. Dr. Balgobin did not observe any scalp injuries, cuts or lacerations. He testified Yarbrough told him she had lost consciousness after being hit in the back of the head. However, the CT scan of her head was negative and no injuries were indicated. Dr. Balgobin testified that Yarbrough did not tell him why it took her over 26 hours to seek treatment. Forensic Testimony
Ismael Parra, a forensic biologist at SWIFS, testified he received Yarbrough's sexual assault kit from Parkland Hospital and conducted serological tests on the evidence therein. Explaining that his job was to look for blood or seminal fluid, Parra testified that Yarbrough's vaginal swab and smear tested positive for the presence of seminal fluid and spermatozoa. Parra received additional evidence from the Dallas Police Department and tested three boxes of swabs, a pair of boxer shorts, a jacket, a skirt, and a thong. Parra testified that two swabs from the sidewalk tested positive for blood, the jacket tested positive for blood, and the thong tested positive for seminal fluid. Kimberlee Allen, also with SWIFS, testified that once SWIFS determines what type of fluid is on an item, DNA analysis is performed. Allen conducted the technical review of the DNA analysis performed on Yarbrough's sexual assault kit, the swabs, jacket, skirt and thong. She also reviewed the DNA sample provided by appellant. Allen testified that the DNA profile from the swabs of blood from the sidewalk matched the DNA profile of appellant. The DNA profile from the swab of blood from the bedroom floor also matched the DNA profile of appellant. Allen testified the DNA profile from blood on the jacket was a mixture profile with at least two contributors to the combination of genetic markers constituting that DNA profile. Fourteen of the twenty-six markers were matches to appellant's DNA profile and eleven of the twenty-six markers were matches to Yarbrough's DNA profile. Allen then described the process of random match probability used to calculate the probability that blood on the jacket was both Yarbrough's and appellant's. Finally, Allen testified that DNA testing on the swabs from blood on the sidewalk and bedroom floor found no indication of Yarbrough's DNA profile. Melissa Benavides, forensic DNA analyst at Orchid Cellmark, testified that she performed Y-STR testing on Yarbrough's sexual assault kit, vaginal swabs and vaginal smear, to isolate and analyze only the male component of the DNA samples. Benavides testified that tests performed on the vaginal swab showed a DNA mixture from two male contributors. Benavides compared the DNA profiles to appellant's DNA profile and determined that appellant could not be excluded as the major contributor. D. Discussion
Appellant first argues the State failed to prove he used his fists as a deadly weapon. He contends that Yarbrough's inconsistent testimony coupled with the physical evidence calls into question whether he ever hit Yarbrough with his fists. In support of his position, Appellant refers to several examples of inconsistent testimony by Yarbrough, such as her testimony at trial that on March 14th, while on the sidewalk outside the gas station, appellant hit her in the crown of her head, her face, and her eyes. Appellant contends that such trial testimony is inconsistent with Yarbrough's statement to Dr. Balgobin and Officer Jennifer Rosenberg that her assailant only hit her in the back of the head. Appellant also notes that Yarbrough testified she regained consciousness on March 15th with blood all over her face, yet the injuries documented by Parkland Hospital medical records are not consistent with her having blood on her face or losing consciousness. Acknowledging that Yarbrough had bilateral bruising to her eyes, face, and around her ears, and a bruise on her upper left arm at the time she was admitted to Parkland Hospital on March 16th, appellant suggests these injuries could have occurred on March 15th or 16th, and not during the assault on March 14th. The State responds that Yarbrough's uncontradicted and corroborated testimony proved all the elements of aggravated assault, that appellant hit Yarbrough's head so hard with his hand she lost consciousness. At trial, Yarbrough testified that on March 14th, appellant hit her so hard in the back of the head that she lost consciousness for a long period of time, possibly twelve hours. She did not remember anything between the time she was hit in the back of the head and the time she awoke the next day. Appellant refers to the notation "Pt denies LOC" on the emergency room triage report to refute Yarbrough's testimony that she was knocked out. However, other hospital records, specifically the violence assessment and sexual assault examination report, document that Yarbrough told hospital personnel she passed out or blacked out after being hit. Yarbrough's CT scan did not identify any head injuries and during his examination of Yarbrough, Dr. Bagolin did not observe any scalp injuries. However, when asked if he felt the back of her head and looked to see if there was bruising or swelling, Dr. Bagolin testified that he did not document making such an examination, probably because Yarbrough had already been evaluated in the main emergency room. Dr. Bagolin also testified it is possible to be knocked unconscious without suffering head trauma sufficient to be reflected on a CT scan. The police investigation identified appellant's blood on the gas station sidewalk at the location where Yarbrough testified she was attacked. At the time of his arrest, appellant's hand was swollen and his knuckles were cut. The State argues that any rational juror who observed Yarbrough as she testified that appellant hit her hard, like she was a man, would be able to infer that appellant cut his knuckles during his brutal assault of Yarbrough on the sidewalk. In determining whether a hand or fist is a deadly weapon, the jury may consider all of the evidence presented, including "the words of the accused, the intended use of the weapon, the size and shape of the weapon, the testimony of the victim that she feared for her life, the severity of wounds inflicted, and testimony as to the weapon's potential for deadliness." Bui, 964 S.W.2d at 343. Yarbrough's uncontradicted testimony constituted evidence from which the jury could reasonably infer that appellant used his hand or fist as a deadly weapon, hitting Yarbrough so hard it knocked her unconscious. With respect to appellant's second issue, appellant contends the evidence is factually insufficient to prove Yarbrough was assaulted on March 14th. Yarbrough testified at trial that she was hit in the back of the head and lost consciousness on March 14th. The medical records reflect that Yarbrough told hospital personnel that she was assaulted on March 14th. Officer Jennifer Rosenberg and Officer Seth Rosenberg testified that Yarbrough told them she was hit in the back of the head on March 14th. There is nothing in the record to contradict Yarbrough's testimony. Therefore, the jury could have believed Yarbrough's testimony that she was assaulted on March 14th. In his third issue, appellant suggests the evidence does not prove he was the person who assaulted Yarbrough. In support, appellant refers to the patient's summary section of the sexual assault examination report, in which Dr. Balgobin transcribed Yarbrough's statement as follows: "We was walking back to my apartment and he came out of nowhere and punched me, I blacked out." Appellant argues that if Yarbrough's assailant came out of nowhere, punched her in the back of the head, and caused her to black out, it would be difficult for her to know the identity of her assailant. Appellant suggests Yarbrough just assumed appellant was her assailant because he was there when she woke up. There is nothing in the record to indicate Yarbrough ever doubted appellant was her assailant. To the contrary, as reflected in the medical records and testimony of Officer Seth Rosenberg, Officer Jennifer Rosenberg, and Dr. Balgobin, Yarbrough consistently identified appellant as the person who hurt her. The jury could have believed appellant was the person who hit Yarbrough. Appellant was able to fully explore on cross-examination Yarbrough's credibility and whether she had a motive to lie. The jury is the trier of fact and jurors are the sole judges of the credibility of the witnesses and the weight to be given inconsistent or contradictory testimony. Lancon, 253 S.W.3d at 706. Considering all of the evidence in a neutral light, we conclude the evidence supporting appellant's conviction for aggravated assault is not so weak that this finding is clearly wrong and manifestly unjust, nor is this finding contradicted by the great weight and preponderance of the evidence. See Steadman, 280 S.W.3d at 246. We resolve appellant's first, second and third issues against him. In his fourth issue, appellant asserts the evidence fails to prove Yarbrough was sexually assaulted by appellant. Appellant contends that Yarbrough's testimony and the evidence reflect inconsistencies in the number of incidents of sexual assault, the timing of the sexual assault and the ways in which appellant allegedly assaulted her. Appellant points out that Yarbrough only told hospital personnel about one incident of sexual assault (after she had taken a shower) but her testimony at trial detailed two sexual assault incidents (one before and one after the shower). Appellant also notes that Yarbrough told police officers that appellant punched her in the back of her head during the sexual assault but at trial, testified appellant hit her with his fist on both sides of her face during the first incident of sexual assault and slapped her in the face before the second incident. In support of his assertion that someone else did it, appellant points to forensic testimony that DNA from a man other than appellant was found inside Yarbrough's vaginal vault. Thus, according to appellant, it is possible the second contributor of DNA sexually assaulted Yarbrough. Finally, appellant argues that because the medical examination of Yarbrough revealed no evidence of vaginal or anal injury, the physical evidence fails to support Yarbrough's account of the assault. At trial, Yarbrough testified that appellant forced her to have oral, vaginal and anal sex without her consent. When she was admitted to the hospital, Yarbrough was in a great deal of pain, scared, and disoriented. She was interviewed at least four times. Officer Jennifer Rosenberg testified that sometimes when people are put through something like that, they are unable to remember everything in chronological order. The State asserts that such evidence, combined with Yarbrough's demeanor at trial and her testimony that with time she had been able to remember the events more clearly, was sufficient for the jury to infer that her memory at the hospital was impaired by the physical and emotional trauma she had endured. The State also argues that the exact sequence or timing in which Yarbrough was raped (i.e. whether appellant first raped her orally, vaginally or anally) does not negate the proof that appellant raped Yarbrough. The evidence established the presence of appellant's DNA in Yarbrough's vaginal vault. Dr. Balgobin testified he found no evidence of vaginal injury, but stated further that vaginal injury is observed in only fifteen to twenty percent of rape cases. Appellant also suggests that since Yarbrough did not explain where she was from the evening of March 15, when she was supposedly taken to a women's shelter, to the evening of March 16, when she was admitted to Parkland Hospital, it is possible she was physically or sexually assaulted by someone other than appellant during that time. Merely offering an alternative theory does not mandate the jury accept it. Whitmire v. State, 183 S.W.3d 522, 527 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); see also Steadman, 280 S.W.3d at 247 ("An appellate court may not find the evidence to be factually insufficient merely because there are `reasonably equal competing theories of causation.'"). After considering all of the evidence in a neutral light, we conclude that the evidence supporting appellant's conviction for sexual assault is not so weak that this finding is clearly wrong and manifestly unjust, nor is this finding contradicted by the great weight and preponderance of the evidence. See Steadman, 280 S.W.3d at 246. We resolve appellant's fourth issue against him. CONCLUSION
We resolve appellant's four issues against him and affirm the trial court's judgments.