Nos. 05-03-01611-CR, 05-03-01612-CR
Opinion Filed September 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-53952-Lp and F02-53922-LP. Affirm.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
KERRY P. FITZGERALD, Justice.
Charles Edward Taylor appeals two convictions for sexual assault of a child. Appellant waived a jury trial and pleaded not guilty to the court in each case. The trial court found appellant guilty and assessed punishment at fifteen years' confinement and a $2500 fine in each case. In a single point of error, appellant contends the evidence is factually insufficient to support the convictions. We affirm the trial court's judgments.
Background
In the early morning on August 16, 2002, appellant's twelve-year-old stepdaughter A.P. went to the kitchen to get a drink. As she passed a mirror in the hallway that reflected into the kitchen, A.P. saw appellant and her fifteen-year-old sister S.P. "having sex in the kitchen." A.P. testified she saw her sister bent over forward with her dress pulled up. Appellant stood behind S.P. with his "pants and boxer shorts pulled down to his knees" and was "moving back and forth." When A.P. walked into the kitchen, appellant and S.P. tried to pull up their clothing. A.P. went to her mother's bedroom and told her what she had seen. The mother took S.P. to the hospital. A.P. testified she did not actually see anyone's "private parts," but she believed appellant was having sex with S.P. S.P. testified appellant inserted his penis into her vagina "lots of times," but he always pulled his penis out before he ejaculated so she would not get pregnant. S.P. testified she sometimes got confused about specific dates because she has sickle cell anemia and her short-term memory was affected after she had two brain surgeries to correct a malformation. However, S.P. remembered appellant began having sex with her when she was fourteen years old. S.P. testified that in September 2001, while she was watching television, appellant sat beside her on the couch and talked to her about having sex with him. Immediately after that conversation, appellant had sexual intercourse with S.P.S.P. testified that on August 16, 2002, she awoke early to do her chores. While S.P. washed dishes, appellant came into the kitchen, kissed S.P. on the lips, and asked her to take off her tights. S.P. went to her bedroom, took off the tights, then returned to the kitchen. Appellant stood behind S.P., bent S.P. forward, and inserted his penis into S.P.'s vagina. S.P. testified that after a few minutes, A.P. came into the kitchen and saw S.P. and appellant having sex. A.P. ran to their mother's bedroom and told her what A.P. had seen appellant doing to S.P. Dallas police detective Elton Fite interviewed S.P. and A.P. at the Dallas Children's Advocacy Center on August 16, 2002. Fite testified S.P. appeared upset and withdrawn, but she was consistent in her story that appellant had sexual intercourse with her that morning and at other times beginning when she was fourteen years of age. Although S.P.'s rape kit exam was negative, Fite testified that was not unusual because the perpetrator oftentimes will wear a condom or pull out before ejaculating. Fite also testified it was common for children to be confused about specific dates of events. Appellant offered into evidence a report from a caseworker with Child Protective Services. Appellant pointed out statements made by S.P.'s and A.P.'s mother that she did not know whether to believe what the girls said about appellant having sex with S.P. because both girls have lied to her in the past. Appellant also pointed out that in the report, the mother stated, "A.P. likes to get people in trouble by lying." Appellant testified he never had any type of sexual contact with S.P., and he denied getting caught having sex with S.P. in the kitchen. Appellant testified that when he arrived home from work that morning, he went directly to the bedroom he shared with S.P.'s mother. After a few minutes, he went to the kitchen to get a beer and saw S.P. in the kitchen "doing something with the trash bag." Appellant got a beer from the refrigerator and went back to the bedroom. Fifteen minutes later, A.P. came to the bedroom and told her mother there was someone at the front door for her. Appellant went out into the living room a few minutes later and heard A.P. say, "that's what she told me." S.P.'s mother then asked appellant if he had raped S.P. Applicable Law
The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly cause the penetration of the sexual organ of S.P., a child, by appellant's sexual organ. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2004-05). The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 2004 WL 840786, at * 7. In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. Johnson, 23 S.W.3d at 11. Discussion
Appellant argues the evidence is factually insufficient to prove he penetrated S.P.'s female sexual organ because: (1) there was no physical evidence of penetration; (2) S.P.'s mother told authorities that S.P. was a liar; and (3) S.P.'s testimony was unreliable due to her memory loss after brain surgery. The State argues the evidence is factually sufficient to support appellant's convictions. We agree with the State. There was conflicting evidence in this case. S.P. testified appellant inserted his penis into her vagina while she was in the kitchen and on other occasions over the course of a year, and that appellant always pulled his penis out of her vagina before he ejaculated. S.P. further testified her long-term memory was not affected by her brain surgeries and that she remembered fully what happened when appellant had sex with her. Additionally, A.P. testified she saw appellant having sex with S.P. in the kitchen. The caseworker's report included an affidavit signed by S.P.'s mother that stated: "[A.P.] came and woke me to let me know that my husband was having sex in the kitchen with my daughter." Appellant denied having sex with S.P. There was testimony that S.P.'s rape kit exam was negative. However, Fite testified that it is not uncommon for there to be no physical evidence of penetration when a perpetrator wears a condom or pulls out before ejaculating. The trial court, as fact finder in these cases, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and resolved the conflicts in the testimony. See Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt and contrary evidence is not strong enough that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 2004 WL 840786, at *7. We overrule appellant's sole point of error. We affirm the trial court's judgment in each case.