Opinion
Nos. 10-06-00188-CR, 10-06-00189-CR
Opinion delivered and filed August 15, 2007. DO NOT PUBLISH.
Appeal from the 396th District Court Tarrant County, Texas, Trial Court Nos. 0952848D and 0952999D.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury convicted Stephen Richard Watson, Jr. of three charges of aggravated sexual assault of a child and assessed his punishment at seventy years' imprisonment for each conviction. Watson contends in six points that: (1) the evidence is legally and factually insufficient to support either conviction (two points); (2) the multiple convictions violate state and federal double jeopardy prohibitions; (3) the court abused its discretion by admitting outcry testimony from three police officers; (4) his right of confrontation was denied by the admission of a sexual assault nurse examiner's testimony regarding statements the complainant made to her; and (5) the court abused its discretion by denying his motion for the State to make an election of the offenses for which it would seek conviction. We will affirm.
Legal and Factual Insufficiency
Watson contends in his first two points that the evidence is legally and factually insufficient to support either conviction because the complainant equivocated in his testimony, because there were conflicts between the complainant's testimony and the testimony of the sexual assault nurse examiner and the police officers, and because of a lack of physical evidence. In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex.Crim.App. 2003). In a factual insufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex.Crim.App. 2006). The jury convicted Watson of three counts of aggravated sexual assault:• penetrating the anus of the complainant J.T. with his penis (appellate cause no. 10-06-188-CR; trial court cause no. 0952848D);
• causing J.T.'s penis to contact his mouth (appellate cause no. 10-06-189-CR; trial court cause no. 0952999D, count one); and
• causing his penis to penetrate J.T.'s mouth (appellate cause no. 10-06-189-CR; trial court cause no. 0952999D, count two).Watauga Police Officer Jason Reddick was the State's first witness. Reddick testified that the complainant's mother called to report that a neighbor had been cursing at her nine-year-old son J.T. J.T. confirmed that this had happened, and Reddick went to the neighbor's house and advised him to be more cautious in talking to children in the neighborhood. J.T. asked to speak with Reddick again. J.T. told Reddick that Watson had forced him into a vacant house on the street five days earlier. Watson forced him into a bathroom, removed their clothes, laid on top of J.T., and "touched his front private to [J.T.'s] private in the back." At that point, Reddick contacted his supervising officer Samuel Nance and asked Nance to come and help him determine whether a detective should be called to take over the investigation. Nance met with Reddick and J.T. then contacted Detective Dennis Riley. After Riley arrived, he took over the investigation. Reddick testified that J.T. offered no further details when Nance arrived. However, after Riley began questioning J.T., additional details came to light. According to Reddick, J.T. told them that Watson had also forced him to touch Watson's penis and perform oral sex on him. Consistent with Reddick's testimony, J.T. testified that Watson forced him into a bathroom in the vacant house. He testified that Watson took his clothes off and inserted his penis into J.T.'s anus while telling J.T. "This isn't going to hurt a bit." J.T. also testified that Watson forced him to touch Watson's penis with his hand, but he did not remember Watson forcing him to perform oral sex or telling anyone that Watson had forced him to do so. J.T. went home and changed his shirt "[b]ecause it was wet" with "white stuff." On cross-examination by defense counsel, Officer Nance testified that J.T. told Reddick and him that Watson "touched his private area on [J.T.'s] private part, and he pointed to his butt area." J.T. did not tell Nance "about oral sex of any kind or any kind of masturbation." Over Watson's objection, Detective Riley testified that J.T. discussed something "involving oral sex." However, after further questioning by both the prosecutor and defense counsel, Riley clarified that he did not recall any conversation about oral sex on the night he went to J.T.'s home. The sexual assault nurse examiner testified that she interviewed J.T. twelve days after the report to the police was made. J.T. told her that Watson's penis touched his anus, that Watson performed oral sex on him, that Watson made him perform oral sex on Watson, that Watson touched his penis, and that Watson made him touch Watson's penis. J.T. also told her that Watson ejaculated. The nurse examiner testified that there was no physical evidence of a sexual assault and explained that this is common in this type of case. Viewed in the light most favorable to the verdicts, J.T.'s testimony alone is sufficient to support Watson's conviction for the charge involving anal penetration (appellate cause no. 10-06-188-CR; trial court cause no. 0952848D). See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005) (conviction for aggravated sexual assault of a child "is supportable on the uncorroborated testimony of the victim"); Abbott v. State, 196 S.W.3d 334, 341 (Tex.App.-Waco 2006, pet. ref'd). With regard to the remaining convictions, the testimony of Officer Reddick and the nurse examiner constitute legally sufficient evidence to support the verdicts despite J.T.'s failure to recall anything involving oral sex. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991) (evidence legally sufficient despite complainant's recantation); Jackson v. State, 110 S.W.3d 626, 631 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (evidence legally sufficient though complainant signed affidavit of non-prosecution). Watson contends the evidence is factually insufficient because the complainant equivocated in his testimony, because there were conflicts between the complainant's testimony and the testimony of the nurse examiner and the police officers, and because of the lack of physical evidence. These issues largely concern matters of credibility. The jury is "the sole judge of the weight and credibility of witness testimony." Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). By its verdict, the jury chose to believe the State's version of the events. See Chambers, 805 S.W.2d at 461; May v. State, 139 S.W.3d 93, 99 (Tex.App.-Texarkana 2004, pet. ref'd); Parker v. State, 119 S.W.3d 350, 355 (Tex.App.-Waco 2003, pet. ref'd). We must defer to the jury in its resolution of such issues. See Vasquez, 67 S.W.3d at 236; May, 139 S.W.3d at 99; Parker, 119 S.W.3d at 355. Thus, we cannot say that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdicts clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414-15; Abbott, 196 S.W.3d at 341; May, 139 S.W.3d at 99. Accordingly, we overrule Watson's first and second points.