Opinion
NO. 09-11-00187-CR
03-21-2012
WILLIAM JAMES BARRAS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B-100686-R
MEMORANDUM OPINION
A jury convicted appellant William James Barras of aggravated sexual assault of a child and assessed punishment at twenty years of confinement. In his sole appellate issue, Barras challenges the legal sufficiency of the evidence supporting his conviction. We affirm the trial court's judgment.
THE EVIDENCE
L.M., the mother of the victim, K.M., explained that K.M. has Asperger's syndrome, has an IQ "in the upper 50s[,]" and is enrolled in special education classes. L.M. testified that K.M. has some difficulty talking and "problems with some words. But over all, her talking is pretty good." When the offense occurred, L.M., K.M., and L.M.'s other children were living in a two-bedroom apartment with L.M.'s brother and sister-in-law, L.M.'s mother, and L.M.'s stepfather, Barras. On the day the offense occurred, K.M. did not attend school. After K.M. attended a doctor's appointment with L.M., K.M. began watching television in the living room, and L.M. went into the back bedroom. L.M. left the bedroom door slightly open to monitor K.M., and L.M. could hear K.M. laughing.
When L.M. noticed that she could no longer hear K.M.'s laughter, L.M. went to check on K.M. Upon entering the living room, L.M. saw Barras kneeling in front of K.M., who was on the couch. L.M. testified, "I looked and I saw his back. He was on the floor on his knees. I saw the back of his head, the back of his back and I could see [K.M.] actually in front of him leaned back." L.M. explained, "it looked to me like [his hand] was down her pants, and I could see that it didn't look right." L.M. could not see Barras's hands, but she could see the motion of his arms. L.M. testified that K.M.'s pants were pulled down past her waist, "[n]ot quite past her butt, but they were fully open." L.M. shouted an expletive at Barras, and he jumped up and went into the kitchen. Barras told L.M. that he was trying to rub K.M.'s belly. According to L.M., K.M. had to pull up her pants, button them, and zip them. L.M. was concerned, and she took K.M. out of the apartment. When L.M. left the apartment, she encountered a neighbor and the maintenance man, and after L.M. told them what she had seen, the maintenance man called 911.
Officer Katherine Braneff testified that when she questioned Barras, Barras said "he was just rubbing [K.B.'s] stomach, that she's asked him for her stomach to be rubbed and that he does it all the time." Barras also told Officer Braneff that he had never touched K.B. inappropriately.
Before the police arrived, L.M. asked K.M. what had happened, and K.M. told L.M. that "her PawPaw Jimmy [Barras] was rubbing her private parts." K.M. demonstrated by "rubb[ing] her private area" with her hand outside her clothing. L.M. explained that K.M.'s hand was "[o]ver her vagina area, between her legs" during the demonstration, and K.M. was rubbing her hand up and down on the area. L.M. explained that the police then arrived and interviewed K.M. outside L.M.'s presence. L.M. testified that both she and K.M.'s teachers had taught K.M. the difference between good and bad touch in first or second grade.
K.M. testified that she is ten years old. K.M. explained that she lived with her grandmother and Barras (who she called PawPaw Jimmy) when she was in the fourth grade. According to K.M., she was watching cartoons in the living room, and Barras entered the room when something scary happened. K.M. testified that Barras unfastened her pants and touched her on her "bad spot" with his hand inside her panties. K.M. testified that it felt "bad" and "hurt" when Barras touched her "bad spot" because of his fingernails. K.M.'s mother came into the living room and removed her from the apartment, and K.M. testified that she went to talk to the police and then went to the hospital in Beaumont, where she spoke to a nurse. K.M. testified that after her mother took her out of the apartment, K.M. told her mother what Barras was doing.
On cross-examination, K.M. testified that she believed she had met defense counsel previously at the courthouse, and that she attended school on the day of the offense. K.M. also testified during cross-examination that Barras was rubbing her belly. K.M. explained that the touching was bad and it hurt, but she did not bleed afterward. When asked by the prosecutor whether Barras rubbed her belly or her bad spot, K.M. answered, "[m]y bad spot." K.M. also testified that she had not asked Barras to rub her belly.
Sexual assault nurse examiner Angela Dillahunty testified that she examined K.M. on the date of the offense. K.M. told Dillahunty that Barras "'kneeled down in front of me and told me to give him a hug and I didn't. He got on his knees and touched my bad spot,' and she pointed to her vaginal area, 'and [her] butt.'" Dillahunty explained that the female sexual organ begins with the labia majora and includes the labia minora, the hymen, and the vagina, and the hymen and vaginal opening are two to three centimeters "inside of where the labia majora close together." According to Dillahunty, K.M. did not have any injuries on her genital area, but K.M. had mild redness on the labia majora, which Dillahunty attributed to poor hygiene. Dillahunty explained,
I wouldn't expect there to be genital injury with her history of somebody touching her down there. Just like if somebody touched my arm before I came in, you can't tell by looking. If somebody touches a child['s] genitalDillahunty testified that even if a child described penetration made with a sharp fingernail, an observable injury rarely occurs. According to Dillahunty, the female sexual organ is penetrated before the hymen is reached. Dillahunty believed that although K.M. did not necessarily function at an appropriate level for K.M.'s age, K.M. was able to easily articulate the things that she told Dillahunty.
area, it's very uncommon that it leaves injury, so you generally can't tell by looking.
ANALYSIS
In his sole appellate issue, Barras argues that the evidence was legally insufficient to support his conviction. Specifically, Barras challenges the sufficiency of the evidence that he penetrated K.M.'s female sexual organ.
In evaluating the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899, 902, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the ultimate authority on the credibility of witnesses and the weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must presume that the jury resolved such facts in favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at 900 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. However, we may not substitute our judgment for that of the fact finder concerning the weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
A person commits aggravated sexual assault of a child by penetration when he intentionally or knowingly causes the penetration of a child's sexual organ by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West Supp. 2011). In this case, the indictment alleged that Barras penetrated K.M.'s sexual organ with his finger. "[M]ere contact with the outside of an object does not amount to a penetration of it. But pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact." Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Therefore, touching of the female genitalia amounts to penetration as long as the contact "could reasonably be regarded by ordinary English speakers as more intrusive than contact with [the] outer vaginal lips." Id. In Vernon, the Court of Criminal Appeals concluded that although the victim testified that appellant touched the "outside" of her vaginal area with his hands, she never felt his finger inside, and she felt pain and discomfort in the area, the evidence was sufficient to prove appellant penetrated the victim's sexual organ. Id. at 408-10.
Because the amendments to section 22.021 are not material to this case, we cite to the current version of the statute.
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In the case at bar, L.M. testified that she saw Barras kneeling in front of K.M., whose pants were pulled down past her waist, and that although L.M. could not see Barras's hands, it appeared that his hand was "down" K.M.'s pants, and L.M. could see Barras's arms moving. The jury also heard L.M. testify that K.M. said Barras was rubbing her private parts, and that K.M. demonstrated by rubbing her hand up and down on her vaginal area. In addition, K.M. testified that Barras unfastened her pants and touched her on her "bad spot" with his hand inside her underwear, and that the touching felt bad and hurt due to Barras's fingernails. Dillahunty testified that K.M. related to her that Barras touched her bad spot, and that K.M. pointed to her vaginal area when referring to her bad spot. Furthermore, the jury heard Dillahunty explain that observable physical injuries do not generally occur when a child's genitals have been touched, and that the female sexual organ is penetrated before the hymen is reached, since the hymen and vaginal opening are located two to three centimeters inside the labia majora. Viewing all of the evidence in the light most favorable to the verdict and deferring to the jury's responsibility to weigh the evidence and to draw reasonable inferences therefrom, we conclude that the evidence is legally sufficient to support the verdict. See Brooks, 323 S.W.3d at 899, 902, 912; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13; Vernon, 841 S.W.2d at 408-10. Accordingly, we overrule Barras's sole issue and affirm the trial court's judgment.
AFFIRMED.
_________________________
STEVE McKEITHEN
Chief Justice
Submitted on February 24, 2012
Opinion Delivered March 21, 2012
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.