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In Sessums, the court concluded that the victim's complaint of a "sore bobo" was insufficient to prove the element of penetration without evidence linking the soreness to penetration.
Summary of this case from Garcia v. StateOpinion
No. 06-02-00149-CR.
June 20, 2003.
June 27, 2003. DO NOT PUBLISH.
On Appeal from the 6th Judicial District Court, Fannin County, Texas, Trial Court No. 19556.
Before Morriss, C.J., Ross and Carter, JJ.
OPINION
A jury convicted Larry Don Sessums, Sr., of one count of aggravated sexual assault of a child and one count of indecency with a child. The convictions originated from a single indictment containing multiple counts. The jury assessed punishment at forty years' imprisonment for aggravated sexual assault of a child and twenty years' imprisonment for indecency with a child. Our opinion only addresses Sessums' conviction of aggravated sexual assault of a child. Around July 1, 1999, Jennifer Wallace, J.D.S.'s mother, walked into a bedroom and discovered her five-year-old son, J.D.S., performing oral sex on Charles Ray Woods, the stepfather of her husband, Aaron Wallace. This incident provoked an investigation by Child Protective Services (CPS). As part of the investigation, Ron Hamilton, a CPS investigator, interviewed J.D.S. During the interviews, J.D.S. revealed that, in addition to the sexual abuse by Woods, his "pawpaw" had also sexually abused him. J.D.S.'s "pawpaw" was identified as Sessums, his paternal grandfather. Sue Jennings, a licensed professional counselor and certified sex offender treatment provider, also interviewed J.D.S. According to Jennings, J.D.S told her his "pawpaw had done some bad things" like messing with his (J.D.S.'s) "private parts" by using his (Sessums') "finger and his hand" and touching his (J.D.S.'s) "pee-pee" and "bobo" with his (Sessums') "pee-pee." Jennings testified that when J.D.S. said "bobo" she understood this to mean his "bottom." Based on these interviews, the State charged Sessums with one count of aggravated sexual assault of a child and one count of indecency with a child. At trial, no medical evidence or eyewitness testimony was adduced. The State's evidence consisted of testimony of four expert witnesses and the testimony of J.D.S's step-grandfather, Jim Hale. A jury convicted Sessums of one count of aggravated sexual assault of a child and one count of indecency with a child. On appeal, Sessums raises five points of error. Because his second point of error is dispositive, we will not address points one, three, four, or five. In his second point of error, Sessums contends the evidence at trial was both legally and factually insufficient to prove beyond a reasonable doubt the elements of aggravated sexual assault of a child. Specifically, Sessums challenges the sufficiency of the evidence to support the penetration element of the offense. In reviewing the legal sufficiency of the evidence, we look at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Sells v. State, No. 73,993, 2003 Tex.Crim. App. LEXIS 63, at *4-5 (Mar. 12, 2003) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Any inconsistencies in the evidence should be resolved in favor of the verdict. Armstrong v. State, No. 03-02-00211-CR, 2003 Tex. App. LEXIS 4321, at *7 (Austin May 22, 2003, no pet. h.). The indictment against Sessums for aggravated sexual assault of a child alleged Sessums intentionally or knowingly sexually assaulted J.D.S., a child younger than the age of fourteen and not the spouse of the defendant, by causing the defendant's finger to penetrate the anus of J.D.S. On the issue of penetration, the State offered no medical evidence. The State, however, contends the evidence taken in its totality is legally sufficient on the issue of penetration. First, the State directs us to Jennings' testimony. According to Jennings, J.D.S. told her his "pawpaw" had done "some bad things," including touching J.D.S.'s "pee-pee" and "bobo" with his "pawpaw's" "pee-pee," and touching his "private parts" with his "pawpaw's" hand and finger. Ronald Jeff Hamilton, a CPS investigator, and Laura McAndrews, a therapist with Helping Hands Home for Children, also testified that, during their interviews with J.D.S., he revealed that his "pawpaw" had touched his "private parts." In addition to this expert testimony, the State points to the testimony of Hale. On direct examination, the following exchange occurred between the prosecutor and Hale:
[Prosecutor]: All right. Did you have occasion to talk to [J.D.S] alone?
[Hale]: Yes, sir.
[Prosecutor]: In 1998?
[Hale]: Yes, sir.
[Prosecutor]: Do you remember him telling you something important in 1998?
[Hale]: Yes, sir.
[Prosecutor]: What did he tell you?
[Hale]: . . . I was hooking up to do my dialysis and I asked [J.D.S] to sit down in peepaw's recliner and he hung his head like this and he said, "I can't, peepaw," and I said why, and he said, "my bobo is sore." I said what, [sic] "do you mean your bobo is sore." And he hung his head again and he said, "pawpaw's been playing with it."[Prosecutor]: Who did you understand him to me [sic] by pawpaw?
[Hale]: Larry Don Sessums, Sr.[Prosecutor]: When he told you that, what was your reaction?
[Hale]: Very upset and beet red.
[Prosecutor]: What do [sic] you understand him to mean when he told you that?
[Hale]: In my own mind, I drew a conclusion that he had been messing with his bobo.
[Prosecutor]: As in spanking him or what?
[Hale]: No.[Prosecutor]: Was it clearly something other than spanking?
[Hale]: Yes.
[Prosecutor]: What was it clear to you that it was?
[Hale]: In my own words? In my own words, I think he was molesting the child.The State insists that Hale's testimony about a "sore bobo" and a belief that J.D.S. was molested combined with Jennings', Hamilton's, and McAndrews' testimony that Sessums touched J.D.S.'s "private parts" was legally sufficient evidence on the issue of penetration. We disagree. While there is evidence supporting the proposition that Sessums touched J.D.S.'s "private parts" and "bobo," the State offered no evidence specifically defining these nontechnical terms. Although Jennings testified that, when J.D.S. said "bobo," she understood him to be referring to his "bottom," no evidence was adduced indicating he was specifically referring to his anus. Without conjecture and speculation, we cannot know to what J.D.S. was referring when he used the terms "bobo," "pee-pee," and "private parts." Moreover, Hale's testimony that J.D.S. had a "sore bobo" does not necessarily equate to a reference to a sore anus, or that the soreness to which J.D.S. was referring was caused by the penetration of Sessums' finger. In short, the State offered no evidence linking the soreness to penetration. Again, the conclusion that the soreness in J.D.S.'s "bobo" was caused by the penetration of Sessums' finger can only be arrived at with the aid of conjecture and speculation. Because there is no evidence supporting the allegation Sessums penetrated J.D.S.'s anus with his finger, we conclude the evidence was legally insufficient on the indicted offense of aggravated sexual assault of a child. We sustain Sessums' second point of error as legally insufficient and render a judgment of acquittal on count one-aggravated sexual assault of a child. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Because Sessums' conviction of aggravated sexual assault of a child is reversed for legally insufficient evidence, we do not need to address his other points of error, including a review of the factual sufficiency of the evidence. Finally, although Sessums contended at oral argument he appealed both his conviction for aggravated sexual assault and indecency with a child, in his brief, he made no argument specifically identifying his conviction of indecency with a child. Rather, his brief contains only references to his conviction of aggravated sexual assault of a child. Therefore, Sessums' brief is inadequate on his conviction of indecency with a child and presents nothing for our review. See Tex.R.App.P. 38.1(h) (requiring brief contain clear and concise argument for contentions made, with appropriate citations to authority and the record); McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997); see also Ladd v. State, 3 S.W.3d 547, 575 (Tex.Crim.App. 1999) (holding that requiring appellants to abide by briefing rules and make reasonable arguments does not offend due process). We reverse Sessums' conviction of aggravated sexual assault of a child and render a judgment of acquittal as to count one of the indictment.
Woods was convicted of sexual assault of a child.