No. 05-06-01252-CR
Opinion issued June 6, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-06-84.
Before Justices MORRIS, FRANCIS, and MAZZANT. Opinion By Justice MORRIS.
JOSEPH B. MORRIS, JUSTICE.
A jury convicted Odis Jones, Jr. of sexual assault of a child. In two issues, appellant contends the evidence against him is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Factual Background
When she was sixteen years old, S.J., the complainant, visited her grandmother's house the day before Thanksgiving. Appellant lived at the grandmother's house. In the evening, S.J. lay on the living room couch watching television while the adults were cooking. Appellant came into the room, sat on the floor beside S.J., touched her face with his hand, and said, "I want to have a bond with you." S.J. believed appellant meant he wanted a relationship with her like he had with his other girlfriends. S.J. did not say anything to appellant, but moved away from him. Appellant got up and went back to his bedroom. S.J. eventually fell asleep on the couch. She was still wearing her clothes, a top, and shorts. At approximately 1:30 a.m., she awoke when she felt appellant touching her. S.J. testified appellant was on top of her and touched her "private area" that was "between [her] legs." S.J. claimed she felt appellant "a little on the inside" of her private area. As S.J. got up, appellant "jumped off" of S.J. and zipped up his pants. S.J. went to another room and called her mother. She asked her mother to pick her up because appellant "was touching me in my sleep." S.J.'s mother called the police. S.J. testified she initially thought appellant was touching her vaginal area with his hand. She gave a written statement to a police officer. In her statement, S.J. said appellant's hand was rubbing her "vagina area." After S.J. wrote out her statement, she talked to a detective. S.J. testified that the day after the assault, she thought about what appellant had done and believed he had touched her with his penis and not his hand. S.J. testified that no one had told her to say appellant touched her with his penis, and that her statement to the police was written before she thought about the assault. Appellant also gave a written statement to police. In it, he said: (1) he did not try to have sex with his niece, he only tried to see "how far she go with herself;" (2) he "playfully bit her on her ear" and "she keep on playing back;" (3) he lay "on her," but she did not try to stop him; (4) he touched her to "see how far she go;" (5) he pulled out his penis, but only to see what she would do; (6) he "touch her with it, and she did not try to stop;" and (7) he rubbed her vagina with his penis and it "accidentally went in." He went on to state he had to stop himself because "she was not going to stop herself." At trial, appellant claimed he gave an untrue written statement to "trap" the police and S.J. in a lie. Appellant testified he, S.J., and her younger brother were watching an X-rated movie in appellant's bedroom earlier that evening. S.J. and her brother told appellant they had already seen the movie, so he allowed them to watch it again. Later, when S.J. was lying on the couch in the living room, appellant sat on the floor beside her to talk. Appellant admitted he touched S.J. on her arm and face but denied he touched her "private parts." Appellant admitted he had spent fifteen years in prison for previous felony convictions. Discussion
In his two issues on appeal, appellant claims the evidence against him is legally and factually insufficient. He specifically contends the evidence is legally and factually insufficient because the State did not prove intentional or knowing penetration, there was no medical evidence of penetration, and the State relied on his written statement to prove the elements of the offense. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Here, S.J. specifically testified that appellant got on top of her, and "touched" her with his penis "a little on the inside" of her vagina. S.J. testified that although her written statement to the police said appellant touched her with his hand, she believed appellant used his penis instead of his hand. Appellant's written statement said he rubbed S.J.'s vagina with his penis, but his penis "accidentally" went in S.J.'s vagina. At trial, appellant acknowledged he gave the statement to police but he claimed he only wrote the same story the officer told him that S.J. had reported. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). After viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction for sexual assault of a child. We resolve appellant's two issues against him. We affirm the trial court's judgment.