Nos. 05-09-01514-CR, 05-09-01515-CR
Opinion issued April 26, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause Nos. F08-47983-X and F08-47984-X.
Before Justices MORRIS, BRIDGES and FRANCIS.
Opinion By Justice BRIDGES.
Appellant Jimmy Black appeals his convictions for two charges of aggravated sexual assault. In three issues, appellant contends the evidence is factually insufficient to support the convictions and that the judgments should be corrected to reflect the proper statute for the offense. We reform the judgment to reflect the proper statute for the offense and, in all other respects, affirm the judgment of the trial court.
Background
M.L. testified that appellant lived with her and her mother. When she was five-years-old, M.L. was about to change her clothes when she said appellant took her hand and led her into her mother's room. Once inside the room, appellant got on the computer and started looking at some pictures. Then, appellant "wanted [M.L.] to put stuff on [her] hands and rub it on his private." M.L. did not know what the "stuff" was, except that it came from her mother's bathroom and was in a rectangular container. Appellant "put [her] hands on his private." She testified she saw his private but does not recall what it looked like. Appellant then made M.L. look at pictures. The next day, appellant went into M.L.'s room and "took off all [of her] clothes." He looked at her private and touched her private. More than once, M.L. testified he touched her on the inside of her private. She did not see what appellant was doing because "he would push [her] back [on the air mattress]." When M.L. was in her mother's room, appellant made her "put [her] hands on his private." Another time, appellant "wanted [M.L.] to suck on his private." She testified he made her do it, but she did not want to do it. She could not see his private when he made her put it in her mouth and did not know how many times appellant made her put his private in her mouth. M.L. testified appellant touched her private in her room and in her mother's room, but was unsure how many times appellant touched her. She testified it would happen "[s]traight when [she] got off of school," and he told her not to tell anyone. M.L. testified she told the truth about what happened and did not make up the instant allegations to get her parents back together. Hulsey Lumley, M.L.'s father, testified he learned about the abuse at the beginning of November 2008. M.L. asked Lumley, who was on his laptop computer at the time, whether there were any "naked pictures" on his computer. Lumley responded that there were some naked pictures, but that she could not look at them. M.L. started crying and then told him that appellant made her look at naked pictures on his computer. She told him the pictures were of naked boys and naked girls. She also told him that appellant had touched her on her private part. "She explained that [appellant] laid her down on the bed, removed her panties, and put his thumb on her vagina." Appellant made a circular motion on the outside of her vagina. At that point, Lumley called M.L.'s mother, Jamie Gallego. Lumley testified he then let Gallego listen on the phone as M.L. described what had happened. M.L. told Lumley that appellant told her to put lotion on her hands and masturbate him. She "demonstrated a masturbation motion." Appellant also told her to put her mouth on his penis. M.L. told Lumley some liquid came out of appellant's "peepee" and that he wiped it off and made her lick it off his finger. Then, he did the same thing himself. Lumley understood that M.L. was describing multiple incidents of abuse. M.L. was unable to tell Lumley when the abuse occurred. She was only able to describe the house they were living in at the time. Lumley testified M.L. said appellant touched her on the outside of her private parts. Lumley contacted the Balch Springs Police Department. When the police arrived and spoke with M.L., they contacted the Seagoville Police Department. Lumley testified that, when the police were in his driveway, he was not a part of their interview with M.L. Lumley later met with a detective from the Seagoville Police Department. At the detective's direction, Lumley took M.L. to the Dallas Children's Advocacy Center (DCAC) for a forensic interview. Lumley was not allowed to participate in M.L.'s forensic interview. The day after her forensic interview, Lumley took M.L. to the REACH clinic for a physical exam. At trial, Lumley denied coaching M.L. to make the instant allegations. Gallego testified she learned about the allegations when Lumley called and told her. She denied hearing the allegations over the phone at the same time Lumley heard them. According to Gallego, M.L. liked appellant and seemed close to him. Before and after appellant's arrest, she did not see a change in M.L. toward appellant. Seagoville Police Sergeant Stephen Davis testified he investigated the allegations and believed "they were too graphic for [him] to believe [M.L] was coached." He further testified Gallego was initially protective of appellant. During her interview, Gallego told him that Lumley had previously made "an adult friend finder Website with [appellant's] information to break [Gallego and appellant] up." Irish Burch conducts and supervises forensic interviews at the DCAC. She reviewed the records regarding M.L.'s interview and the interview itself. Burch testified that M.L. gave sensory details during her interview. Ashley Lind, Senior Clinical Director at the DCAC, testified she has not met or consulted on M.L.'s case. She was called to testify as to "trends and research and education information specific to issues related to child abuse." Lind testified that "[o]ut of the children who make outcries about sexual abuse, it is only about two percent that are found to be lying." If a child provides specific details, it is less indicative of coaching. "Generally, when a child is coached, either they can't remember or the adult who is coaching them usually doesn't think of all those details to tell a child. And for a child it doesn't really make sense, so they can't put it in a order that makes sense." It is difficult for young children to "keep all the facts straight" for years. Appellant testified he was close friends with Lumley, but Lumley was "always kind of snickering and joking around about, you know, if you'd leave her then maybe I could get her back." Appellant further stated Lumley made up stories and websites about appellant. Appellant denied committing the instant offenses, and asserted Lumley convinced M.L. to make up the allegations. Analysis
In his first two issues, appellant contends the evidence is factually insufficient to support his convictions for aggravated sexual assault in Cause No. F08-47983 (penetration of M.L.'s sexual organ with his finger) and Cause No. F08-47984 (penetration of the mouth of M.L. with his sexual organ). We note the Texas Court of Criminal Appeals has overruled Clewis v. State, See Footnote 1 holding the Jackson v. Virginia See Footnote 2 standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard. 443 U.S. 307. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894-95. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). In order to obtain convictions in both causes, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the sexual organ of M.L., a child younger than six years old, by any means and caused the penetration of the mouth of M.L by the sexual organ of appellant. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (ii) (West 2010). During trial, appellant denied the allegations against him and alleged M.L.'s father had coached her to make the allegations. However, our review of the record also shows M.L. testified in detail about the penetration of her vagina with appellant's finger and the penetration of her mouth with appellant's penis. M.L. denied being coached. Her father denied coaching her. Further, Sergeant Davis testified the allegations "were too graphic for [him] to believe [M.L] was coached." Irish Burch with DCAC testified M.L. gave sensory details during her interview. Ashley Lind, Senior Clinical Director at DCAC, testified that only about two percent of children that outcry are found to be lying and, if a child provides specific details, it is less indicative of coaching. We are required to defer to the jury's credibility and weight determinations and, based on our review of the record before us, we conclude the evidence was sufficient for the jury to convict appellant on both counts of aggravated sexual assault. See Jackson, 443 U.S. at 326. We, therefore, overrule appellant's first and second issues. In his third issue, appellant argues the judgment should be reformed to reflect the proper statute as section 22.021 of the penal code. The State, in its brief, concedes the judgment in both cases should be reformed to reflect section 22.021 rather than section 22.02. Therefore, we affirm appellant's third issue and reform the judgment to reflect the correct statute. See Tex. R. App. P. 43.2(b). We affirm the trial court's judgment in all other respects.