No. 05-04-00799-CR
Opinion Filed July 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court Collin County, Texas, Trial Court Cause No. 296-81841-02. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MARTIN RICHTER, Justice.
In a single indictment, Stephen Wayne McBride was charged with aggravated sexual assault of a child younger than fourteen years of age and indecency with a child. A jury convicted McBride of both offenses and assessed punishment at seventy-five years' imprisonment and fifteen years' imprisonment, respectively. McBride now appeals the convictions asserting in eight points of error that the evidence is legally insufficient to prove venue, legally and factually insufficient to support the convictions, his convictions violate the constitutional guarantee against double jeopardy, and his seventy-five year sentence for the aggravated sexual assault constitutes cruel and unusual punishment. We affirm.
Background
The victim of both offenses is McBride's stepdaughter, L.T., who was eighteen years old at the time of trial. She testified that she was four when her mother and McBride "got together." At first, L.T. and McBride's relationship was "great," but when she was about nine, McBride started becoming aggressive. According to L.T., he began "slapping, punching, and hitting" her with "anything he could get his hands on" and was very demeaning towards and demanding of her. Then, he began molesting her. The abuse started with inappropriate touching of her genitals and breasts and escalated to penetration of her sexual organ with his finger and sexual organ. L.T. recounted specifically two instances of abuse, although the abuse occurred several times a month for six years. L.T. also testified that she initially reported the abuse to her sixth grade teacher and was removed from her home because of the allegations. At the time, she disclosed only inappropriate touching and falsely stated that it had happened just one time. She was returned home, however, after she recanted the allegations under pressure from her mother and for fear of "destroying" her family. She decided to fully disclose the abuse three years later, after McBride threatened to kill her and because she feared her sister, five years younger, might also be abused. Although no medical evidence was admitted, L.T.'s testimony was corroborated in large part by her sixth-grade teacher, her maternal grandparents, police investigators, and several Children's Protective Services (CPS) and Child Advocacy workers. These witnesses testified that L.T.'s mother was unsupportive of L.T. and they were concerned for L.T.'s safety after she was returned home following her recantation. These witnesses also testified that they believed L.T. was physically and sexually abused and had even seen bruises on her and inappropriate interactions between her and McBride. Videotapes of L.T.'s interviews with the caseworkers were admitted and shown to the jury. McBride did not testify but called as his witnesses his sister, L.T.'s mother, and L.T.'s sister. All three denied McBride was emotionally abusive or violent and McBride's sister also testified that McBride had denied the allegations. Sufficiency of the Evidence to Prove Venue
In his sixth and seventh points of error, McBride asserts the evidence is legally insufficient to prove venue for either offense. McBride did not raise this issue at trial but bases his assertion on testimony that L.T. and her family lived in several different towns throughout the period of abuse. Although the State alleged the offenses occurred in Collin County, McBride argues the State failed to prove any of these towns are within Collin County. We disagree. Texas Rule of Appellate Procedure 44.2(c)(1) provides that unless venue is disputed in the trial court, or the record affirmatively shows the contrary, the court of appeals must presume venue was proved. Tex.R.App.P. 44.2(c)(1). In sexual assault and indecency cases, venue is proper in the county in which the offense occurred. See Tex. Code Crim. Proc. Ann. arts. 13.15, 13.18 (Vernon Supp. 2005). Here, McBride did not dispute venue at trial and the record does not affirmatively show the offenses were not committed in Collin County. See Tex.R.App.P. 44.2(c)(1). In fact, although McBride argues no evidence was presented that any of the towns in which the abuse occurred are in Collin County, the record reflects L.T. testified that two of the towns, Anna and Melissa, are in Collin County. Additionally, as the State points out, the allegations were investigated by Collin County officials, who had "jurisdiction" over the cases because they occurred in Collin County. We overrule McBride's sixth and seventh points of error. Sufficiency of Evidence to Support Convictions
In his first four points of error, McBride argues the evidence is legally and factually insufficient to support the convictions. Specifically, in his first and second points of error, McBride asserts the evidence is legally and factually insufficient to show his sexual organ penetrated L.T.'s sexual organ. And, in this third and fourth points, McBride asserts the evidence is legally and factually insufficient to show he touched L.T.'s breasts and genitals with the intent to arouse or gratify his sexual desire. In all four points, McBride bases his contentions on the evidence showing L.T. recanted the allegations she made in her first disclosure and the lack of medical evidence. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In both sufficiency reviews, we must be appropriately deferential to the fact-finder's role as the exclusive judge of the witnesses' credibility and the weight given to the evidence. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Based on the indictment in this case, to obtain a conviction for the aggravated sexual assault of L.T., the State needed to prove McBride intentionally and knowingly caused the penetration of the sexual organ of L.T., a child younger than fourteen years of age and not McBride's spouse, by means of his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2004-05). The State could prove this through testimony of the child alone and without medical evidence. Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied, 538 U.S. 963 (2003); Empty v. State, 972 S.W.2d 194, 196 n. 1 (Tex.App.-Dallas 1998, pet. ref'd). To obtain a conviction for indecency with a child, the State needed to prove McBride intentionally or knowingly engaged in sexual contact with L.T., a child younger than seventeen years of age and not McBride's spouse, by touching her breasts with the intent to arouse and gratify his sexual desire. See Tex. Pen. Code Ann. § 21.11(a)(1), (c)(1) (Vernon 2003). The jury could infer McBride's intent to arouse or gratify his sexual desire from his conduct alone, his remarks, or all the surrounding circumstances. Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.-Fort Worth 1999, pet. ref'd). Here, the record reflects L.T. recounted specifically two instances of abuse to the jury, describing how McBride began by touching her breasts inappropriately and then engaged in intercourse with her. L.T. also testified the abuse occurred repeatedly over a six-year period, and her testimony was corroborated by several witnesses. Although no medical evidence of penetration was presented, none was necessary; L.T.'s testimony alone was sufficient. Tear, 74 S.W.3d at 560; Empty, 972 S.W.2d at 196 n. 1. And, although no evidence was presented specifically showing McBride touched L.T.'s breasts with the intent to arouse or gratify his sexual desire, the jury could infer that intent from the testimony showing that his abuse of L.T. escalated to penetration and continued for several years. See Couchman, 3 S.W.3d at 163. Additionally, although McBride discredits L.T.'s testimony because she recanted her first disclosure and, although his witnesses contradicted L.T's testimony in large part, the jury was the exclusive judge of the witnesses' credibility. Harvey, 135 S.W.3d at 717. By returning guilty verdicts, the jury necessarily found L.T. credible and McBride's witnesses not credible. This was within the jury's prerogative. Id. Viewing the evidence under the appropriate standard, we conclude the evidence is legally and factually sufficient to support the verdicts. We overrule McBride's first four points of error. Double Jeopardy
In his fifth point of error, McBride asserts his convictions violate the constitutional guarantee against double jeopardy because his indecency conviction was based on sexual contact of L.T.'s sexual organ and was incident to the penetration of her sexual organ by his sexual organ, which formed the basis for his aggravated assault conviction. In other words, McBride argues he was punished twice for the same offense. The Double Jeopardy Clause of the United States Constitution prohibits multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App. 1991). When the same criminal conduct violates two separate penal statutes, the two resulting offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other. Blockburger v. United States, 284 U.S. 299, 304 (1932). In Texas, greater inclusive and lesser included offenses can be the same for jeopardy purposes, and indecency with a child by touching the genitals can be a lesser included offense of aggravated sexual assault of a child by penetration of the child's sexual organ if the same act is used to prove both the touching and the penetration. Elder v. State, 132 S.W.3d 20, 23 (Tex.App.-Fort Worth 2004, pet. ref'd), cert. denied, 125 S.Ct. 1645 (2005). Here, the record reflects the indictment contained two paragraphs charging McBride with indecency, one alleging indecency by contact of the genitals and the other alleging indecency by contact of the breasts. See Tex. Pen. Code Ann. § 21.11(a)(1), (c)(1). At trial, however, the State abandoned the indecency by contact of the genitals paragraph and proceeded solely on the indecency by contact of the breasts paragraph. In instructing the jury on the indecency count, the charge authorized a conviction for indecency only if the jury found McBride had touched L.T.'s breasts. McBride's complaint that he has been punished twice for the same offense is without merit. We overrule McBride's fifth point of error. Cruel and Unusual Punishment
In his eighth point of error, McBride asserts his seventy-five year sentence for the aggravated assault conviction is cruel and unusual. McBride argues the punishment was disproportionate because the "victim, the sole witness to the alleged offense, had lied about the offenses," he had no felony convictions at the time of trial, and he was eligible for probation. In response, the State notes that McBride did not complain about the sentence at trial or in a post-trial motion. As a result, the State argues, McBride has waived any error. See Tex.R.App.P. 33.1(a)(1). We agree. Even constitutional rights, including the right to be free from cruel and unusual punishment may be waived. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). To have preserved error, McBride needed to have raised his complaint with the trial court. He failed to do so. Accordingly, we overrule McBride's eighth point of error. We affirm the trial court's judgments.