Opinion
Nos. 14-07-00871-CR, 14-07-00872-CR
Opinion filed January 8, 2009. DO NOT PUBLISH C TEX. R. APP. P. 47.2(b).
On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause Nos. 1033313 1033314.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
MEMORANDUM OPINION
A jury found appellant Derrick Jerod Lane guilty of two offenses of aggravated sexual assault of a child, and the trial court sentenced him to twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division, for each offense. The trial court ordered the sentences to run concurrently. In one issue, appellant contends that the evidence is factually insufficient to support the jury's verdicts. We affirm.
I. Factual Background
The complainant, D.A., is appellant's daughter. Although D.A.'s parents dated for several years, they never married, and after they broke up, D.A. lived with her mother and saw her father on weekends. In early June of 2005, when D.A. was eight years old, appellant took D.A. to a pool party at the apartment complex of a family friend, Niki Landry. After the party, D.A., appellant, and others went to Niki's apartment. There, after eating hot dogs and taking a bath, D.A. watched television in the living room with her cousin and some other children. Appellant and Niki's boyfriend left the apartment, and D.A. fell asleep on the couch. When appellant returned some time around 2:00 a.m., he took D.A. into the "flex space," another room in the apartment, where they went to sleep on a couch. No one other than appellant was in the room with D.A. D.A. fell asleep on the couch, but later got up to use the restroom. At some point after D.A. returned from the restroom, appellant pulled her pants down to her ankles and then pulled down her underwear. D.A. pulled her clothes back up, but appellant pulled them down again and "stuck his penis in [her] behind." D.A. could feel appellant moving his "private" around. Appellant also licked her "private part" and her chest, and inserted his finger in her "front side" "private part." During the time these things were happening, appellant and D.A. were under some covers, and no one else came into the room. After the assault, appellant told D.A. that he would "do something" to D.A.'s mother if she told anyone about it. The next day, at a family gathering at appellant's aunt's home, D.A. told her aunt Devina Lane, appellant's sister, what happened. D.A. told Devina that appellant had touched her "in a private area" and that D.A.'s mother had told D.A. that if anyone touches her in a private area, that is "rape." D.A. also told Devina that "her dad put his private area tried to put his private area on her private area." D.A. said that it hurt, so she went to the bathroom, and when she came back she was crying, and appellant told her to "stop acting like a baby." Later, D.A. told Devina that appellant "licked her on the chest and the private area." Devina advised some other family members of these allegations, and when they confronted appellant, he denied having assaulted his daughter. Devina and several other female family members took D.A. to Texas Children's Hospital, and appellant's mother reported D.A.'s allegations to the police. Officer Terry Joseph, a deputy with the Harris County Sheriff's Office, met with D.A. and her family at the hospital. D.A. told Officer Joseph that her father, appellant, had assaulted her within the previous twenty-four hours. Specifically, D.A. told Joseph that appellant had licked her vagina and placed his penis and finger inside her vagina. Joseph made a report and then referred the information to a detective with the sex crimes unit. Dr. Mark Ward, a pediatrician at Texas Children's Hospital, examined D.A. after she was interviewed by a social worker and a sexual assault nurse examiner. From the medical records, he observed a transection, or split, of the hymen at the 8:00 o'clock position, with no bleeding, and redness at the 6:00 o'clock position. He also noted that the external exam of the anus was normal. Dr. Ward testified that the transection and redness were consistent with the details D.A. had given the social worker and nurse before he examined her.II. Analysis of Appellant's Issue
Appellant contends the jury's verdicts were manifestly unjust for the following reasons: (1) D.A.'s testimony is suspect because her descriptions of the alleged offenses were contradictory; (2) the police investigation was inadequate; (3) appellant's prior trial resulted in a mistrial; (4) the physical evidence was conflicting or lacking and the attending physician stated that the physical evidence did not support D.A.'s allegations; and (5) the proximity of many other people in the apartment at the time of the alleged offenses makes D.A.'s version of events unlikely at best. We address these arguments below.A. Standard of Review
A factual sufficiency review begins with the presumption that the evidence is legally sufficient. Conner v. State, 67 S.W.3d 192, 198 (Tex.Crim.App. 2001); Perez v. State, 113 S.W.3d 819, 836 (Tex.App.-Austin 2003, pet. ref'd), overruled on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex.Crim.App. 2008). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007). We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). However, while we may disagree with the jury's conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). We may not simply substitute our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Finally, we must discuss the evidence that, according to appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).B. The Evidence is Factually Sufficient to Support the Jury's Verdicts
1. The evidence of the descriptions of the offenses is not so contradictory that it renders the jury's verdicts manifestly unjust. Appellant was charged with committing two offenses of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon Supp. 2008). The indictment in cause number 1033313 alleges that appellant committed an offense by intentionally and knowingly causing D.A.'s sexual organ to contact his mouth. The indictment in cause number 1033314 alleges that appellant committed an offense by intentionally and knowingly causing D.A.'s sexual organ to contact his sexual organ. Appellant first contends that contradictory testimony concerning the descriptions of the alleged offenses renders the evidence too weak to support the verdicts. Appellant points to the testimony of Devina Lane and D.A., which he contends implicate at least nine different offenses. Appellant further points to instances in which he contends defense counsel impeached D.A. with prior statements and testimony from appellant's previous trial. According to appellant, it would have been difficult, if not impossible, for the jury to properly evaluate all of these contradictory allegations when determining whether appellant committed the offenses actually alleged. So overwhelming are the contradictory and confusing descriptions of the alleged offenses, appellant posits, that this case implicates the same concerns raised in those cases in which the State is required to make an election when evidence of multiple incidents of sexual abuse are presented. Cf. Dixon v. State, 201 S.W.3d 731, 733 (Tex.Crim.App. 2006) (citing Phillips v. State, 130 S.W.3d 343 (Tex.App.-Houston [14th Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex.Crim.App. 2006)) (noting, among other things, that election rule minimizes risk that jury might determine guilt based on totality of crimes rather than proof of one or more crimes beyond a reasonable doubt, and it ensures unanimous verdicts). Appellant also contends that allowing cause number 1033314 to go to the jury when at trial D.A. affirmatively denied that appellant put his "private" on her "front private" was so confusing to the jury "that it completely undermines confidence in the jury verdict on both counts. "However, we disagree that the evidence is so contradictory and confusing that it cannot support the jury's verdicts. First, concerning the allegation of oral contact with D.A.'s sexual organ, D.A. testified that appellant licked her "private part," which she identified on an anatomically correct doll as the female sexual organ. Further, shortly after the sexual assault, she repeatedly and consistently told a number of people that appellant licked her vagina. Less than twenty-four hours after the assault, D.A. told appellant's sister, Devina Lane, that appellant licked her "private area," or sexual organ. In response, Devina took D.A. to the hospital, where D.A. told Officer Joseph that appellant licked her vagina. Jane also made similar statements to a social worker and a nurse examiner. Appellant points to no testimony contradicting these statements. Second, concerning the allegation that appellant caused his sexual organ to contact her sexual organ, appellant is correct that D.A. testified that appellant "stuck his penis in [her] behind," but denied that he placed his penis on her "front private." Appellant contends that this denial, coupled with Devina Lane's testimony that D.A. told her appellant "tried to" put his private area on her private area, amounts to insufficient evidence to support the jury's verdict in cause number 1033314. However, when D.A. told Devina that appellant "tried to put his private area on her private area," she also told Devina that it hurt. Devina further testified that when D.A. told her this, she understood D.A. to mean that there was penetration of her vagina. D.A. also told a number of other people that appellant did cause his sexual organ to contact her sexual organ. Officer Joseph testified that appellant placed his penis inside her vagina. Further, the social worker's report reflects that D.A. said that appellant "raped" her and put his "middle/private in her private." Similarly, the nurse examiner at the hospital reported that D.A. said that appellant "raped" her when he put his "middle part" on her. Moreover, there was evidence that, at eight years old, D.A. may have been confused about whether appellant contacted her anus or her vagina. Detective James Fitzgerald, the lead detective in this case, testified that he had been in the child abuse division for thirteen years and had investigated more than 2,000 child sexual assault cases. He explained that eight-year-old sexual assault victims frequently are unable to differentiate between a penetration of their anus and a penetration of their vagina due to their lack of sophistication and experience. Reviewing courts similarly recognize that child victims cannot be expected to testify with the same clarity and ability as mature and capable adults, and so give wide latitude to testimony given by child victims of sexual assault. See Newby v. State, 252 S.W.3d 431, 436-37 (Tex.App.-Houston [14th Dist.] 2008, pet. struck) (citing Villalon v. State, 791 SW. 2d 130, 134 (Tex.Crim.App. 1990)). Further, the medical evidence was consistent with vaginal, rather than anal, penetration. Dr. Ward's examination of D.A. revealed a transection, or split, in her hymen, as well as an area of redness on her vagina. Dr. Ward explained that these conditions were consistent with the abuse D.A. described to the social worker and the nurse examiner. Dr. Ward also testified he did not recall D.A. alleging that appellant contacted her anus, and his examination of her anus revealed no evidence of trauma. A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. Contradictory testimony is a factor for the jury to consider, but merely because the testimony is contradictory does not mean that the evidence is factually insufficient to support appellant's convictions. Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determinations concerning what weight to give contradictory testimonial evidence because its resolution often turns on the jury's evaluation of the credibility and demeanor of the witnesses. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 408-09. Although we may disagree with the jury's conclusions, we may do so only "to a very limited degree." See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Thus, although D.A.'s testimony concerning penetration was inconsistent, the jury had before it evidence that, shortly after the assault, D.A. consistently outcried to several adults that appellant had contacted her vagina with his mouth and penis, and medical evidence corroborated D.A.'s account. Accordingly, we disagree with appellant that the evidence presented to the jury was so contradictory concerning her description of the alleged offenses that the evidence is too weak to support the jury's verdicts.2. The allegedly "failed investigation" does not render the jury's verdicts manifestly unjust.
Next, appellant contends that the jury's verdicts were manifestly unjust because Detective Fitzgerald, the lead investigator in the case, failed to recover any physical evidence from the scene of the assault, did not visit the scene, did not interview witnesses who were present, and did not consult with any medical personnel. Appellant also contends that the State did not call him to testify, but rather he was called by the defense as an adverse witness, because of his failure to properly investigate D.A.'s allegations. Initially, the State responds that although the detective may not have undertaken every investigative effort appellant deems necessary, he did conduct a considerable and adequate amount of productive investigation and therefore his investigation cannot be faulted. His testimony reflects that, among other things, he called D.A.'s mother the same day he received the file, set up an interview for D.A. and her mother at the Children's Assessment Center, subpoenaed and obtained D.A.'s medical records from Texas Children's Hospital, obtained Devina Lane's written statement, spoke to appellant's mother, and reviewed Child Protective Services records. However, even assuming that Detective Fitzgerald's investigation was inadequate, his deficient performance would not render the evidence insufficient to support appellant's convictions. The lack of physical or forensic evidence is merely a factor for the jury to consider in weighing the evidence. See Lee v. State, 176 S.W.3d 452, 458 (Tex.App.-Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. 2006). It is not needed to corroborate D.A.'s testimony of sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see also Glockzin v. State, 220 S.W.3d 140, 148 (Tex.App.-Waco 2007, pet. ref'd) (holding that when victim testified to facts establishing aggravated sexual assault, lack of physical or forensic evidence did not demonstrate factual insufficiency). As discussed above, the jury had before it sufficient evidence to convict appellant of the two offenses alleged. We therefore reject appellant's contention that an inadequate police investigation renders the evidence factually insufficient to support the jury's verdicts.3. The evidence from the earlier mistrial does not render the jury's verdicts manifestly unjust.
Next, appellant argues that the evidence is factually insufficient, in part, because a mistrial was declared in his previous trial after the jury was unable to reach a verdict. Appellant notes that, in the previous trial, Detective Fitzgerald was called by the State, and additional witnesses were called by both the State and the defense. The defense also called appellant, and recites some of appellant's testimony from the first trial. Appellant makes no argument in this section of his brief and cites no authorities to support his assertion that the earlier mistrial is in any way relevant to our factual sufficiency review of the verdicts of the jury in the second trial. Our review of the record for factual sufficiency of the evidence is based on the evidence actually presented to the jury. Evidence from a previous trial, which the second jury did not hear, cannot constitute grounds for finding this jury's verdicts factually insufficient. Appellant's contention is without merit.4. Devina Lane's testimony that Dr. Ward said D.A.'s injuries were too old to have occurred as D.A. described does not render the jury's verdicts manifestly unjust.
Next, appellant contends that the evidence is factually insufficient because Devina Lane testified that Dr. Ward told her at the hospital that D.A.'s injuries were too old to have resulted from a sexual assault committed the previous night. However, Dr. Ward testified that he did not recall making such a statement to Devina, and he indicated that he would not have made such a statement, because it would have been inconsistent with his findings. He also testified that D.A.'s injuries were in fact consistent with her description of a recent sexual assault. The jury could have believed the testimony of Dr. Ward and disbelieved the testimony of Devina, appellant's sister. In a factual sufficiency review, we must defer to the jury's determination concerning what weight to give conflicting testimony because resolution of facts often turns on an evaluation of credibility and demeanor. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 408-09. On this record, we decline to substitute our judgment for that of the jury based on Devina's testimony concerning Dr. Ward's statement to her.5. The evidence that other people were in the apartment at the time of the alleged offenses does not render the jury's verdicts manifestly unjust.
Finally, appellant contends that D.A.'s version of events is suspect because there were a number of other people nearby when D.A. was assaulted, and yet none of them heard anything. However, although other people were in the apartment at the time of the offense and some of them were in the next room, D.A. testified that she and appellant were alone in the room where the assault occurred and she did not hear anyone else wake up during that time. She also testified that she and appellant were under some covers during the entire assault. That appellant managed to assault D.A. under these circumstances does not render D.A.'s testimony suspect. The jury had all of these facts before it, and resolved them against appellant. Again, a decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410.D.A. testified that Niki remained at the apartment, but a sixteen-year-old who also testified at the trial stated that Niki left with her boyfriend and appellant, leaving her in charge of the children.
Records admitted into evidence reflect that D.A. told the social worker that appellant "raped" her, and that he put his "middle/private in her private." D.A. also stated that appellant "licked her private middle part." The nurse's report reflected that D.A. told the nurse that appellant "raped" her when he "put his hands and his middle part" on her and licked her "private."
According to appellant, one could draw from Devina Lane's description of what D.A. alleged as (1) contact of private area to private area; (2) attempted contact of private area to private area; (3) contact of appellant's mouth to D.A.'s chest; (4) contact of appellant's mouth to D.A.'s private area; and (5) penetration of D.A.'s sex organ with appellant's sex organ. Appellant also contends that D.A. testified that (1) he put his penis in her behind; (2) he did not put his private anywhere else; (3) he licked her chest and private; and (4) he stuck his finger in her front side. We disagree that the testimony of these witnesses was as contradictory and confusing as appellant contends. Further, as discussed in greater detail below, much of the testimony appellant identifies supports the jury's verdicts.
Appellant contends D.A. was impeached on such issues as whether or not appellant screamed at her, what time did the alleged offenses occur, who decided she should lie down with her cousin, and whether appellant made comments about her mother if she "told." However, in response to many of counsel's questions, D.A. testified that she did not remember statements made earlier. For example, she did not remember previously stating that appellant put D.A. on her stomach when he put his "private" on her "bottom," what time the alleged assault occurred, or the sequence of events. In another example appellant points to, D.A. first testified on direct examination that appellant never told her not to tell what happened, but defense counsel pointed out that she had previously stated that appellant told her that if she told anyone, he would "do something" to her mother. In another example, D.A. testified she could not remember if appellant screamed at her during the assault, but when shown her previous testimony, she agreed that she was telling the truth when she previously stated that appellant did scream at her and woke up her cousin. The jury was free to assess D.A.'s credibility on these issues and the weight of any conflicting evidence. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 408-09.