Nos. 14-05-00192-CR, 14-05-00193-CR
Memorandum Opinion filed September 5, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 956,898 956,899. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
WANDA McKEE FOWLER, Justice.
Appellant, Lawrence McQueen, was indicted for two counts of aggravated sexual assault of a child. He pleaded not guilty to both charges and elected to represent himself at the guilt-innocence phase of the trial, though requested counsel for the punishment phase of the trial. A jury convicted him on both counts, and the trial court sentenced him to life imprisonment. In one issue, appellant argues the evidence was factually insufficient to sustain his conviction. We affirm.
Factual and Procedural Background
On February 24, 2001, appellant and Bennie Ross, complainant's mother, were involved in a heated argument. Complainant, L.M., was so upset about this argument — one of many between her parents — that she went next door to a family member's home. Once at the other home, L.M. telephoned her father and told him "he [had] broken his promises to her and that she was going to break her promise to him." Testimony fleshed out that L.M. had promised not to tell of his sexual assaults against her in exchange for his better treatment of her mother. After this phone call, L.M. confided in her cousin, Monica Revis, about how appellant had sexually assaulted her. According to L.M., appellant engaged in sexual intercourse with her over a period of years, beginning when she was ten or eleven years old. After L.M. informed her cousin of the abuse, other family members were notified, and eventually the State became involved. The Children's Assessment Center ("CAC") interviewed complainant regarding the abuse. Complainant also received a thorough medical examination, which was inconclusive as to whether or not complainant had been abused, or even had sexual intercourse. However, a physician who specializes in child sexual abuse, testified that it is normal for female genitalia of a girl L.M.'s age to heal quickly and perfectly with no permanent signs of physical trauma. Indeed, the State's medical expert testified that girls can be found with seminal fluid in their genitalia, or infected with a sexually transmitted disease, but have perfectly intact hymens and no physical trauma. During the CAC interview, L.M. gave specific information about the abuse such as where appellant would abuse her and the positions he would use. Complainant repeated these details in extended trial testimony, including a lengthy cross examination from her father, the pro se defendant below. She was unwavering in all details regarding the abuse. Although appellant did not testify in his own defense, he did present witnesses. Some of those witnesses were hostile to his case; others were more favorable — such as his mother, his sister, an investigator appointed by the trial court, and most notably, a physician who specializes in pediatric and adolescent gynecology. While most of appellant's witnesses either testified to his innocence — namely his mother and sister — or to highlight appellant's conspiracy theory regarding the charges, appellant's expert directly contradicted the State's medical expert. According to appellant's expert, it is impossible for a man of appellant's age with appellant's genitalia to have intercourse with a child of L.M's age multiple times without permanent damage to the child's genitalia. Further, appellant's expert testified that while he does not specialize in child sexual trauma, that his medical knowledge supported only one conclusion: if appellant had engaged a child sexually as alleged in this case, there would be verifiable evidence. The jury thus heard dueling medical experts, both highly credentialed and respected in their fields, and both with expertise in child female genitalia. Ultimately, the jury found appellant guilty of both counts of aggravated sexual assault. Appellant then requested the trial court appoint him counsel for the punishment phase, which it did; appellant also elected for the trial court to impose his sentence. After allowing the new counsel preparation time, the trial court heard punishment evidence, and sentenced appellant to life imprisonment. Appellant timely filed notice of appeal. He raises only one issue, namely, that the evidence is factually insufficient to sustain his conviction. We affirm. Analysis
The Evidence was Factually Sufficient When conducting a factual sufficiency review, we view the evidence in a neutral light and will set the verdict aside only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). While we have reviewed the entire record and have considered all evidence presented at trial, we cannot assume the role of fact finder and substitute our judgment for that of the jury. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004) (stating that appellate courts are not to "find" facts or substitute their judgment for that of the jury). In this case, we must determine if the State's evidence were too weak, and then determine if appellant's contrary evidence were so strong that the standard of proof could not have been met. A. The State's Evidence was not Too Weak
A grand jury indicted appellant for two counts of aggravated sexual assault. See TEX. PEN. CODE § 22.021. The State had to prove that appellant penetrated L.M.'s sexual organ with his sexual organ while she was younger than fourteen years old. See id. To prove its case, the State's case rested primarily on L.M.'s testimony. L.M. testified concerning the details of the sexual assaults. She was unequivocal regarding what happened, where it happened, and how it happened. Although she could not place an exact time or age on each occurrence perfectly, that is not required — thus, the use of "on or about" language in an indictment — and L.M. clearly placed her age at younger than fourteen during the time of the assaults. L.M.'s testimony was sufficient to prove each element of the offense. See, e.g., Blackwell v. State, ___ S.W.3d ___, 2006 WL 241131 at *14 (Tex.App.-Houston [1st Dist.] January 31, 2006, no pet.) (stating the one witness rule — that the testimony of one witness is sufficient to convict if the jurors believe that witness beyond a reasonable doubt). B. Appellant's Contrary Theory and Evidence was not so Strong that the Standard of Proof could not be Met
At trial, appellant attempted to prove two things. First, that there was a conspiracy by L.M.'s mother and the mother's family to get appellant out of their lives. Second, that it was medically certain L.M. had not engaged in sexual intercourse with appellant. We take each in turn and hold that the evidence on these theories was not so strong that the standard of proof could not be met. As to appellant's first theory — conspiracy — his evidence was scant. He attempted to discredit certain witnesses' testimony, and highlight possible prejudice. However, in the end, appellant provided little more than innuendo. Concerning State employees — such as his parole officer, CAC workers, and police officers — appellant could do no more than insinuate that they were child advocates who disfavored those accused of crimes, or that they were aligned with L.M.'s family. As for L.M.'s family members, it was no secret they did not want appellant in any of their homes. However, the testimony and evidence appellant elicited from both of these categories of witnesses did not establish a conspiracy to accuse and then achieve a conviction for aggravated sexual assault. Neither did his speculative theory amount to contrary evidence so strong that the standard of proof, beyond a reasonable doubt, could not be met. Regarding appellant's second theory — that the medical testimony proved conclusively he could not have sexually assaulted L.M. as alleged — it was evidence the jury was free to accept or reject. Part of a jury's role is to resolve questions of witness credibility. It is not uncommon to have dueling witnesses — including expert witnesses. However, the jury is free to believe or disbelieve any witness's testimony, including experts. See Feagins v. State, 142 S.W.3d 532, 540 (Tex.App.-Austin 2004, pet. ref'd), cert. denied, 126 S.Ct. 489 (U.S. 2005). We cannot now sit as the jury and decide to accept one expert's testimony over another's; this is especially true when the jury seems to have adopted one expert's view over the other's. That is the jury's province. Therefore, we determine that this expert's testimony was not so strong that the standard of proof could not be met. We overrule appellant's sole issue. Conclusion
Having overruled appellant's sole issue, we affirm the judgment of the trial court.