No. 10-02-094-CR
Opinion delivered and filed August 4, 2003. DO NOT PUBLISH.
From the 54th District Court, McLennan County, Texas, Trial Court # 2001-713-C. AFFIRMED
Samuel H. Bayless, Attorney at Law, San Antonio, Texas, for Appellant. John W. Segrest, McLennan County District Attorney, Waco, Texas, for Appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
TOM GRAY, Justice.
Ernest Boggess worked at the Waco Center for Youth as an youth counselor aide for troubled children. D.H. and J.F. were female residents at the Center. After engaging in sex at a hotel in another county with Boggess, D.H. eventually revealed to staff members at the Center that she and Boggess had engaged in sexual behavior numerous times on the Center's campus. It was also discovered that Boggess had exposed himself to D.H. and her roommate, J.F. Boggess was charged with five counts of sexually assaulting D.H. and one count of exposing himself to J.F. A jury found Boggess guilty of all six counts. Boggess contests the legal and factual sufficiency of the evidence to support his sexual assault convictions. We affirm.
Legal and Factual Sufficiency
In two issues, Boggess contends the evidence was legally and factually insufficient to support the five convictions of sexual assault of D.H. Both issues focus on the credibility of D.H. and the inconsistencies in her testimony. A "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000)). Instead, a legal sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. See also Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). D.H. became a resident of the Waco Center for Youth in September of 2000. She was disobedient toward her family and, because she had been sexually abused, was promiscuous. Boggess worked the 3:00 p.m. to 11:00 a.m. shift in the Red River Unit where D.H. resided. Although he was assigned to the boys' side of the unit, he had access to the girls' side. Boggess's sexual encounters with D.H. began as flirting, making tongue and hand gestures. The intensity of the encounters progressed. Boggess exposed himself to D.H. and J.F. by pulling the leg of his shorts up and to the side to expose his penis to the girls. Next, Boggess had D.H. perform oral sex on him one night while in her room and in J.F.'s presence. D.H. said that Boggess pulled his penis out over the top of his pants. She agreed that someone could have walked by and seen her "sucking his dick." When Boggess ejaculated in her mouth, she swallowed it. J.F. stated that she also saw Boggess pull up his penis from his pants. She knew D.H. was performing oral sex on Boggess because she heard noises from D.H.'s mouth and saw D.H.'s head move up and down while D.H. was on her knees facing Boggess. A few moments later, Boggess had D.H. sit diagonally on her dresser with her legs spread apart and performed oral sex on her. D.H. stated that when Boggess performed oral sex on her, she could feel his tongue "in and around and on" her vagina. After this encounter, Boggess would have D.H. lie on the edge of her bed and perform oral sex on her. D.H. stated that this occurred more than once. J.F., who witnessed one of these encounters, said she knew Boggess was performing oral sex on D.H. because D.H. was lying on her bed with her legs on the bed and her knees bent. She said Boggess had pulled D.H.'s shorts to the side and was standing over her, bent down. D.H. testified that one other time during her stay in the Red River Unit she performed oral sex on Boggess. At that time, Boggess was wearing red athletic shorts and pulled his penis out over the top of the shorts. D.H. also recalled another sexual encounter with Boggess when she was sharpening her pencil in the office. She said Boggess came up behind her, stuck his finger up the leg of her shorts, and "fingered" her. On cross-examination, D.H. agreed that Boggess stuck his finger in her vagina. No one else was in the office at that time. After reviewing the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact could have found the essential elements of each sexual assault beyond a reasonable doubt. The evidence is legally sufficient to support the five convictions for sexual assault. In reviewing a challenge to the factual sufficiency of the evidence, we must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). After a neutral review of all the evidence, we do not find that the proof of Boggess's guilt in the sexual assault charges is so obviously weak as to undermine confidence in the jury's determination, or that the proof of his guilt is greatly outweighed by contrary proof. The evidence is factually sufficient to support the convictions. We note that in his prayer for relief, Boggess alternatively addresses the legal and factual sufficiency of the evidence supporting the conviction for indecency with a child. After reviewing his issues and argument, we can find nothing that raises the sufficiency of the evidence regarding this conviction. Thus, we decline to address this alternative. Conclusion
Having found the evidence to be both legally and factually sufficient to support Boggess's convictions for sexual assault, we overrule his two issues on appeal and affirm the judgment of the trial court.