No. 05-09-01252-CR
Opinion Filed March 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 429th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-82537-08.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
Opinion By Justice MURPHY.
Paul Andrew Propes, Jr. challenges the sufficiency of the evidence to support his convictions for aggravated sexual assault of a child and indecency with a child. We affirm.
BACKGROUND
Appellant was charged by indictment with four counts of aggravated sexual assault of a child and six counts of indecency with a child. The allegations were enhanced by a prior conviction for aggravated sexual assault of a child. Appellant waived a jury trial and pleaded not guilty to the charges. The case was tried before the court. The victim, appellant's daughter C.P., testified in detail how appellant penetrated her "private part" with his "private part" and fingers. C.P. was eleven years old at the time of the assault, which occurred in appellant's "18-wheeler" parked behind C.P.'s grandfather's house. C.P. testified she was watching television inside the truck when appellant came to the back and started touching her. She said appellant took off her pants and underwear, "put spit on his hand," and put the spit on her private part with his hand. She testified he "started moving his fingers around" inside her. Appellant then pulled his pants down to his knees, got on top of her, and put his private part inside her. C.P. told appellant it hurt, but he "still kept doing it" and did not stop until "white stuff started coming out of his private part." Some of the "white stuff" got on the sheets and "some of it came on [C.P.]." C.P. testified that afterward, appellant got upset and started hitting the bed and desk with his hand; he was "saying he shouldn't have done it." Appellant told C.P. to go inside her grandfather's house and take a shower. He also told her not to tell anyone "[b]ecause he would get in trouble." After the assault, C.P. "just didn't feel safe around" appellant, and she did not want to be alone with him. C.P. described another incident that occurred after the assault in the truck. C.P. asked appellant to drive her to her grandmother's house. On the way, appellant stopped behind a shopping center and started touching her private part. She testified appellant told her that "since he was taking [her] somewhere, that [she] had to let him do that." Appellant then pulled down "his pants a little bit where his private part was out." C.P. testified appellant's private part was "sticking up" and he asked her "did [she] want to suck on his private part." When C.P. said no, he "put it back inside his pants." C.P. testified she thought about the assaults a lot and would write about them. She explained she did not tell her mother about the assaults because C.P. was afraid and "didn't know how to tell her." C.P. later tried to tell her cousin in a text message because she "just wanted to get it out." But based on her cousin's reaction, C.P. did not tell her cousin what happened with appellant and instead "made up" a story about "something happen[ing] with a [fifteen-year old] boy." C.P.'s mother called the police regarding C.P.'s outcry related to the boy, and the police initiated an investigation. C.P. testified that although she was questioned about the boy, she never told anyone she made it up. She explained that some of the things she said happened with the boy were actually what happened with appellant. C.P. testified she told one person about what happened with appellant. That person was an eighteen-year old girl C.P. met through her basketball team. C.P. exchanged text messages with the older girl and wrote that appellant touched her. C.P. told the older girl about what happened because C.P. did not feel she could deal with it on her own anymore. C.P.'s mother testified she had concerns about a possible sexual relationship between C.P. and the older girl; C.P.'s mother called the police after she found C.P. "texting" the older girl. Two officers with the City of Plano police department came to their home and spoke with C.P., her mother, and her mother's boyfriend. After their initial investigation, the officers determined there was no "concrete proof anything occurred" between C.P. and the older girl. Specifically, C.P. made no outcry related to the older girl when the officers spoke with her privately. The officers prepared a report based on the information they compiled. As the officers were leaving, C.P. broke down and started crying. One officer testified C.P. was "emotionally distraught" and tucked up in a ball while seated on the couch. He explained C.P. then got up, went to her bedroom, and returned with a small piece of paper, which she handed to her mother. The paper was a note C.P. wrote weeks earlier. On the note, C.P. had written appellant did the same thing to her as he had done to her older half sister. Although she did not know the details of what had happened, C.P. was referring to appellant's molestation of her half sister, which led to his previous conviction for aggravated sexual assault of a child. The officers documented C.P.'s outcry of two instances of sexual contact involving appellant. The case was referred to Plano police detective Kristina Knight, who was assigned to the Family Violence Unit and arranged for a forensic interview. The forensic interview was conducted by Vanessa Gill of the Collin County Children's Advocacy Center; Gill met with C.P. just days after her outcry. Knight watched the interview through a one-way mirror. According to Knight, C.P. was "very closed" and she "didn't really want to talk about" what had happened. Knight testified C.P. "would answer the question that was asked, but not much more." During the forensic interview, C.P. was able to describe the different incidents and "specific little details" related to the incidents, but C.P. disclosed additional details in a later interview with Knight. Knight testified C.P.'s statements were consistent throughout Knight's investigation. Similarly, Gill testified C.P. was "very subdued" during the interview and C.P.'s body language was "kind of blocked off" when "talking about the abuse." Gill also testified C.P.'s story was consistent throughout the forensic interview and she had no concerns about the level of detail C.P. provided. Gill saw no "red flags," such as motive or coaching. As part of her investigation, Knight also interviewed appellant. Appellant was arrested the same day as C.P.'s forensic interview; Knight interviewed appellant at the Collin County jail. Knight characterized appellant's demeanor throughout the interview as "defensive." She testified appellant "didn't really want to address the accusations that had been made against him. It was all about projecting to someone else." During Knight's interview with appellant, he gave Knight some names and asked her to "talk to other people." Knight testified she spoke with the various individuals as appellant requested but she did not learn anything to lead her investigation in a different way. Knight further testified she was able to corroborate C.P.'s story by talking with other people but she was unable to corroborate appellant's story during her investigation. Knight admitted there was no physical evidence appellant molested C.P. because C.P.'s outcry was one year after the assaults took place. Appellant denied C.P.'s allegations as well as the offense involving his older daughter for which he was convicted. He testified he believed C.P. was making up the allegations to please her mother and to protect her relationship with the eighteen-year old girl. He claimed C.P. was mad at him and that she thought he was going to press charges against the older girl. He emphasized he was arrested within six days of telling C.P. he was going to tell her mother about C.P.'s text messages with the older girl. The trial court found appellant guilty of the remaining offenses as charged in the indictment and assessed punishment, enhanced by the prior felony conviction, at life imprisonment for the aggravated sexual assault of a child counts, twenty years' confinement for one count of indecency with a child, and ten years' confinement for the other count of indecency with a child, with the sentences to run concurrently. DISCUSSION
On appeal, appellant complains the evidence is factually insufficient to support his convictions. Since appellant filed his brief, however, the Texas Court of Criminal Appeals held the only standard applicable to determine whether the evidence is sufficient to support each element of a criminal offense is the legal-sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issue under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899-900. We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 900. To prove beyond a reasonable doubt appellant committed aggravated sexual assault of a child, the State was required to establish appellant intentionally and knowingly caused the penetration of the sexual organ of C.P., a child younger than fourteen years of age, with his sexual organ and finger. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), 2(B) (West Supp. 2009). In addition, to prove beyond a reasonable doubt appellant committed the offense of indecency with a child, the State had to establish appellant intentionally and knowingly engaged in sexual contact with C.P., a child younger than seventeen, by (1) touching C.P.'s genitals and (2) exposing appellant's genitals to C.P., with the intent to arouse and gratify appellant's sexual desire. Id. § 21.11(a)(1), (2)(A). The State could meet its burdens through the testimony of the child victim alone or her outcry statement. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (West 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (child victim testimony); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991) (outcry statement). The State had no burden to present corroborating or physical evidence. See Newby v. State, 252 S.W.3d 431, 437 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd) (citing Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978)); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006). C.P. testified in detail to what happened to her in appellant's 18-wheeler and in the car on the way to her grandmother's house. This testimony alone was sufficient to support appellant's convictions in this case. See Tear, 74 S.W.3d at 560. Appellant argues, however, the evidence is insufficient because of the "questionable nature" of C.P.'s credibility and "the overwhelming weakness that surrounds the remaining evidence." He asserts C.P. "showed herself throughout trial to be dishonest generally and as it related to specific instances of abusive conduct," citing C.P.'s inability to recall whether an incident occurred during the day or night and testimony from various witnesses concerning instances of C.P. lying and making up the story involving the fifteen-year old boy. Appellant further argues the evidence is insufficient in light of other testimony suggesting C.P. fabricated the allegations "to protect her ongoing relationship with an older girl" and "to please her mother, who disliked Appellant and wanted to keep him away from his kids." Appellant's arguments are unavailing. It is the role of the trier of fact to reconcile conflicts, contradictions, and inconsistencies in the evidence, and to judge the credibility of witnesses. See Brooks, 323 S.W.3d at 900; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). We afford almost complete deference to these determinations. See Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). The instances of C.P. lying in the past, specifically about the abuse involving a fifteen-year old boy, the "sensory detail" provided by C.P. when testifying about the abuse, contradictory testimony by other witnesses, and C.P.'s possible motives to fabricate her story were all before the trial court. The trial court was entitled to resolve evidentiary weight issues and credibility determinations in the State's favor and to reject appellant's evidence. Thus, after reviewing the evidence under the appropriate standard of review, we conclude the evidence is sufficient to support appellant's convictions. See Jackson, 443 U.S. at 319. We overrule appellant's sole issue and affirm the trial court's judgments.