Nos. 05-05-01465-CR, 05-05-01466-CR
Opinion Filed November 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0501342-Nr and F-0571656-UR. Affirm.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
Opinion By Justice O'NEILL.
Appellant Daryl Lynn Whitfield was convicted of aggravated sexual assault of a child under the age of fourteen and sentenced to two consecutive thirty-year prison terms. On appeal, he alleges (1) the trial court improperly allowed irrelevant testimony regarding a study involving pregnant teenagers, (2) such evidence was unduly prejudicial, (3) the evidence is factually insufficient to prove aggravated sexual assault by penetration of the female sexual organ, and (4) the evidence is factually insufficient to establish aggravated sexual assault by contact and penetration of the mouth by his sexual organ. We affirm the trial court's judgment.
Background
Jewell Hardin, complainant's mother, needed someone to take care of her two daughters while she worked. Her pastor suggested that Linda Whitfield, a fellow member of the church, take care of complainant and her little sister Diamond. At the time, complainant was around five years old and Diamond was around seven months old. Although Mrs. Whitfield was the primary care giver, her husband also assisted with the girls. The Whitfields cared for the two girls for a few years until Jewell learned of an after school program at complainant's school. Complainant then started going to the after school program, but stayed with the Whitfields on school holidays. Sometime in February 2005, after the Martin Luther King, Jr. holiday, Diamond told Jewell and her grandmother that "Shorty showed me his thing." They called complainant into the room and asked her if it was true, and she dropped her head and nodded yes. It was not until the next day, while riding home from school, that complainant opened up to her mother about appellant's sexual abuse, which included intercourse and oral and anal sex. Jewell called her pastor, and he asked all parties involved, including the Whitfields, to meet at the church to discuss the allegations. Complainant then provided details of the abuse. Jewell later called the police, and complainant described her abuse to them. She again described the abuse when she went to the Dallas Children's Advocacy Center. Appellant was charged on two indictments of aggravated sexual assault of a child under the age of fourteen. A jury found him guilty on both indictments and sentenced him to thirty years' confinement in each case. This appeal followed. Relevance of Medical Study
Appellant claims the trial court erred in admitting Dr. Matthew Cox's expert testimony regarding a medical study of pregnant teenagers because it was irrelevant since it involved a completely different population of females in different circumstances than complainant. We review a trial court's evidentiary ruling under an abuse of discretion standard. Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005). As such, we must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. Dr. Cox, testifying as an expert and the examining pediatrician, found no evidence of trauma or tears to complainant's genitalia; however, he stated this was not unusual in situations when a victim is examined several weeks or months after the alleged abuse. In fact, he noted on complainant's medical chart "No physical findings suggestive of abuse at this time. A normal genital exam does not rule out sexual abuse." Dr. Cox then offered the following study to explain the lack of physical evidence of penetration. He described a study involving thirty-six pregnant females between the ages of twelve and seventeen. Some of the pregnancies resulted from voluntary sexual relations, while others resulted from sexual abuse. The females underwent genital examinations, and the study revealed that only two of the thirty-six participants had findings definitive for past penetration, despite the obvious fact that all of the participants had previously had intercourse resulting in pregnancy. Appellant objected to Dr. Cox's testimony because "if it's a study between girls aged twelve and seventeen, it's not relevant to this case." Thus, he has only properly raised an argument regarding the relevance of the study, which we will consider. The trial court is guided by Texas Rule of Evidence 702 in determining whether expert testimony should be admitted. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. Thus, expert testimony must make an effort to tie pertinent facts of the case to the scientific principles, so as to be helpful to the trier of fact. Jordan v. State, 928 S.W.2d 550, 554-55 (Tex.Crim.App. 1996). Although evidence must be sufficiently reliable and relevant, appellant challenges only the relevancy of the testimony. Rule 402 provides that all relevant evidence is admissible, except as provided by the Constitution, by statute, or by certain rules of evidence. Tex. R. Evid. 402. "Relevant evidence" means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Here, although the study involved females older than complainant and under different circumstances, the evidence was relevant. Dr. Cox was in the best position to explain to the jury why the genitalia of sexually abused victims often exhibit no physical signs of penetration. He tied the study to his earlier conclusion that he was not surprised about the lack of physical evidence of penetration in complainant's genital examination. He further explained that because oral, vaginal, and anal tissue is mucosal, it heals quickly and without scarring. Thus, the farther away in time the examination is from the abuse, the less likely there would be physical evidence of penetration. Because Dr. Cox tied his testimony to the pertinent facts of the case, which assisted the trier of fact to understand the lack of physical evidence, the evidence was relevant. As such, the trial court properly admitted the testimony. Appellant's first issue is overruled. Sufficiency of the Evidence
In his third and fourth issues, appellant challenges the factual sufficiency of the evidence to prove aggravated sexual assault by penetration of the female sexual organ and aggravated sexual assault by contact and penetration of the mouth by his sexual organ. In reviewing the factual sufficiency of the evidence, we consider all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex.Crim.App. Oct. 18, 2006). As the reviewing court, we may not substitute our own judgment for that of the jury and may not intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Johnson v. State, 187 S.W.3d 591, 602 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). Appellant contends the evidence is factually insufficient because the complainant's story is "implausible," there was no physical evidence, and the complainant denied being abused when her mother asked her about it on previous occasions. Appellant's contentions are without merit. First, as noted above, Dr. Cox testified that the lack of physical evidence did not mean that complainant was not abused. In cases such as this, when the examination occurs days or months after the last abusive episode, the genitalia tissue will have healed without leaving any traces of abuse. The jury, as sole judge of witness credibility and the weight to be given his testimony, was free to accept Dr. Cox's testimony. Johnson, 187 S.W.3d at 602; Rice v. State, 195 S.W.3d 876, 879 (Tex.App.-Dallas 2006, no pet.). Second, complainant's denial of any abuse prior to the final outcry to her mother does not establish that it did not occur. Such testimony may affect the believability of complainant's statements, but the fact-finder considered her testimony in reaching its guilty verdict. See, e.g., Divine v. State, 122 S.W.3d 414, 420 (Tex.App.-Texarkana 2003, pet. ref'd) (holding a child's inconsistent statements regarding abuse may affect the believability of the outcry statements, which could affect the weight given by the fact-finder to her testimony). Moreover, the jury heard testimony from Cindy Alexander, the clinical director at the Dallas Children's Advocacy Center, explaining children often delay making outcry statements because of fear of retribution by the perpetrator. She further testified that even with a supportive parent who tells their child "always tell me if something like this happens to you," the child often does not immediately disclose the abuse. Finally, the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Furthermore, a child victim's outcry statement can be sufficient to support a conviction for aggravated sexual assault. Tear, 74 S.W.3d at 560. Here, the testimony from both complainant and her mother support the jury's finding that appellant penetrated complainant's female sexual organ and sexually assaulted her by contact and penetration of the mouth by his sexual organ. A day after Diamond told Jewell that appellant "showed me his thing," complainant opened up about her sexual abuse. She testified that complainant told her in the car on the way home from school that appellant made her suck his penis. She also described being in a position in which he put his penis in her vagina. Complainant testified at length regarding appellant's sexual abuse. She testified that while Mrs. Whitfield and Diamond were upstairs, appellant would sexually abuse her on the living room couch. He made her pull her pants and underwear off and then "he put his private in mine." She said she felt bad about it and it "hurted." She testified this happened more than once. She also explained that if appellant ever heard his wife coming down the stairs, he told her to run to the bathroom and put her clothes back on. She had to run to the bathroom over ten times. She also described how appellant forced her to perform oral sex on him, often while he was playing video games. Appellant sat on the couch, while she was on her knees. She described his penis, which was pointed up, as a little bit soft and hard. He told her to move up and down until "white stuff" came out. Appellant would then get a kitchen towel to clean himself up. She further testified that appellant also put his penis in her bottom, but she admitted she performed oral sex the most. Besides providing this testimony at trial, complainant had consistently told the same story to her mother, her pastor, the police, and the interviewer at the Dallas Children's Advocacy Center. Although appellant testified and denied the allegations, his testimony, describing how he had a good relationship with complainant and her family, does not make complainant's allegations "implausible." See Johnson, 187 S.W.3d at 602 (noting jury's role as the sole judge of the weight and credibility of witness testimony). Viewing all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson, No. PD-469-05, 2006 WL 2956272, at *7. Appellant's third and fourth issues are overruled. Conclusion
Having overruled all of appellant's issues, we affirm the trial court's judgment.