Opinion
Nos. 14-07-00269-CR, 14-07-00271-CR, 14-07-00272-CR
Opinion filed February 19, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 180 th District Court Harris County, Texas Trial Court Cause No. 1101502, 1053394, 1066078.
Panel consists of Justices YATES, GUZMAN, and BROWN.
MEMORANDUM OPINION
A jury convicted Jerry Dean Pyeatt of the felony offenses of aggravated sexual assault of a child, injury to a child, and indecency with a child by exposure. He was sentenced to five years' confinement for the sexual-assault conviction, and nine years' confinement for each of the two additional felonies. The jury recommended suspended sentences and community supervision for the latter two convictions. Pyeatt now challenges the legal and factual sufficiency of the evidence for each conviction. We affirm. In 2005, W.P. was six years old and lived with his mother and Pyeatt, her boyfriend. When his father picked him up for Thanksgiving visitation that year, he noticed that W.P. had bruises on his legs, arms, and buttocks. W.P. told his father that Pyeatt had hit him with a ruler, brush, paddle, and belt, and had grabbed, punched, and kicked him. W.P.'s father called Children's Protective Services, which removed him from his mother's home, placed him with his grandmother, and began an investigation. W.P.'s father testified to all of these facts, and the trial court admitted into evidence photographs W.P.'s father had taken of the injuries. The jury also heard testimony from a licensed therapist who began treating W.P. in March of 2006. She testified that on their first visit she suspected W.P. had been exposed to sexual material. She explained that W.P. spoke about sex, and when she asked what "sex" meant, he demonstrated by placing a G.I. Joe figure on top of a Barbie doll and making an up-and-down motion. He added that people had to be naked to have sex. W.P. told her that Pyeatt made W.P. have sex with his mother, and that Pyeatt pulled his own pants down and made W.P. "suck his middle part." When presented with anatomically correct dolls, W.P. identified the "middle part" as the penis. The therapist also testified that W.P. said Pyeatt made him watch pornographic movies, once tied him to a chair with a rope, sometimes beat him with his fists, and threatened to cut off his penis if he misbehaved. The jury also heard from W.P., who was seven when he testified. He identified the private parts on a woman's body as the "boobs and the nu nu" and testified that, at Pyeatt's insistence, he touched his mother's "nu nu" with his "dick" when he was five and six years old. W.P. further testified that Pyeatt "pulled [his] pants down a little and made [him] go have sex with [his] mama." He elaborated on the incident and explained that his mother was "watching TV naked" when Pyeatt told him to "go have sex with [his] mom." W.P. testified about another incident in which Pyeatt exposed his "front middle part" to W.P. and told him to "come suck it." W.P. also testified that Pyeatt would sometimes hit him on his back and bottom with a spatula, a ruler, or his fist. He was scared to go to his mother's home because Pyeatt "hurt [him] a lot." Pyeatt testified that he had a "pretty good" relationship with W.P. and that the bruises on W.P.'s body could have been from playground equipment. He denied showing W.P. pornography, injuring W.P., or forcing W.P. to perform sexual acts with him or W.P.'s mother. When evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). If any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). We do not resolve any conflict of fact, weigh any evidence, or evaluate any witness's credibility, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume that the trier of fact resolved conflicts in the prevailing party's favor. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). We may overturn the verdict only if it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). In contrast, when hearing a factual-sufficiency challenge, we view all the evidence neutrally. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We especially discuss and examine the specific evidence that the appellant contends undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if 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). We must not, however, intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). Although we may disagree with the jury's conclusions, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility. See Watson, 204 S.W.2d at 414. We will address each conviction separately, beginning with the sexual-assault charge. A person commits aggravated sexual assault of a child if he intentionally and knowingly causes the sexual organ of a child to contact the sexual organ of another person. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii) (Vernon 2005). Pyeatt's conviction for aggravated sexual assault rests not on evidence of sexual contact between Pyeatt and W.P., but on evidence that Pyeatt was a party to sexual contact between W.P. and his mother. See Tex. Pen. Code Ann. § 7.02(a)(2); see also Burdine v. State, 719 S.W.2d 309, 319 (Tex.Crim.App. 1986) (holding that evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages it). Pyeatt contends that the evidence was insufficient to prove that W.P.'s and his mother's sexual organs came into contact. We disagree. In his brief, Pyeatt points specifically to two pieces of evidence: W.P.'s testimony that Pyeatt "made me go have sex with my mama" and W.P.'s acknowledgement that he touched his "dick" to his mother's "nu nu." Pyeatt complains that the evidence neither shows that W.P. sufficiently understood the meaning of the word "sex" nor demonstrates that by "nu nu" W.P. was referring to his mother's genitals. The evidence did not show that W.P. had an adult's understanding of the word "sex." But in his descriptions to the therapist of what he understood sex to be (which the therapist relayed to the jury), and in his descriptions to the jury of what he did with his mother at Pyeatt's direction, W.P. provided evidence of what the jury could reasonably find to be a violation of the statute. See Lee v. State, 176 S.W.3d 452, 456 (Tex.App.-Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex.Crim.App. 2006) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990) (holding that child victims cannot be expected to communicate with the ability and clarity of a mature adult)). The imprecise terms W.P. used to identify sexual organs were enough to convey to the jury that a touching of sexual organs had occurred. See Lee, 176 S.W.3d at 457 (citing Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App. 1977) (holding that evidence can be sufficient to show a touching of the genitals even if the victim uses "language different from that in the statute to describe the part of the body touched")). Based on the evidence, a rational trier of fact could have found the essential elements of aggravated sexual assault of a child beyond a reasonable doubt. The evidence is legally and factually sufficient to support the verdict and the great weight and preponderance of the evidence do not contradict it. Pyett's second conviction was for injury to a child. A person commits injury to a child if he intentionally or knowingly causes bodily injury to a person 14 years of age or younger. Tex. Pen. Code Ann. § 22.04(a)(3), (c)(1) (Vernon 2005). At trial, the jury saw photographs of and heard testimony about injuries W.P. allegedly suffered at Pyeatt's hands. Pyeatt argues that the State presented no evidence of particular instances that pertained to a specific time frame, but only generalized accusations that Pyeatt might have struck W.P. at some time. Such evidence, Pyeatt maintains, is factually insufficient to support the conviction. Pyeatt further contends that W.P.'s complaints were unsupported by any corroborating facts. Corroborative evidence is not necessary to show injury to a child. Only cases of treason, perjury, and aggravated perjury require corroborative testimony. Martin v. State, 13 S.W.3d 133, 140 (Tex.App.-Dallas 2000, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 38.15, 38.18 (Vernon 2005)). The law requires evidence of corroborating circumstances only when a conviction is based on an accomplice's testimony, in certain cases when the evidence includes a defendant's oral statement during custodial interrogation, and under certain circumstances in sexual-assault and aggravated-sexual-assault cases. Id. at 140-41(citing TEX. CODE CRIM. PROC. ANN. arts. 38.07, 38.14, art. 38.22 § 3(c) (Vernon 2005)). In all other cases, a single witness's uncorroborated testimony is enough for the jury to convict so long as they may believe it beyond a reasonable doubt. See Castillo v. State, 913 S.W.2d 529, 532-33 (Tex.Crim.App. 1995). W.P. testified that Pyeatt injured him, and his father and therapist testified that he had told them the same thing. And even though corroborative evidence is unnecessary, the photographs W.P.'s father took of his injuries at least circumstantially corroborate W.P.'s allegations. A rational trier of fact could have found the essential elements of felony injury to a child beyond a reasonable doubt. Further, the great weight and preponderance of the evidence do not contradict the verdict. Pyeatt's third conviction was for indecency with a child. A person commits indecency with a child if, with the intent to arouse or gratify the sexual desire of any person, he exposes any part of his genitals knowing that a child is present. Tex. Pen. Code Ann. § 21.11(a)(2)(A) (Vernon 2005). Pyeatt claims that the State did not prove specific intent. We disagree. The jury may infer specific intent to arouse or gratify the sexual desire of a person from the conduct or remarks of the accused, or from the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App. 1993). The intent to arouse or gratify may even be inferred from conduct alone. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981). The jury heard testimony from W.P. and his therapist that Pyeatt exposed his genitalia to W.P. and told him to "come suck it." Based on this evidence alone, a rational trier of fact could have found the essential elements of felony indecency with a child beyond a reasonable doubt, including the element of specific intent to arouse or gratify. Further, the great weight and preponderance of the evidence do not contradict the verdict. We affirm the judgment.