Opinion
No. 05-06-00428-CR
Opinion issued July 16, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 422nd District Court, Kaufman County, Texas, Trial Court Cause No. 23420-422.
Before Justices Wright, Bridges, and Mazzant.
OPINION
John Allen Braz appeals his conviction of three counts of aggravated sexual assault. A jury convicted appellant and sentenced him to thirty years' confinement and a $10,000 fine in each of two counts and thirty-five years' confinement and a $10,000 fine in the third count. In three issues, appellant argues the evidence is legally and factually insufficient to support his conviction, and the trial court erred in admitting evidence of an unadjudicated extraneous offense. We affirm the trial court's judgment. In July 2004, twelve-year-old N.L. was visiting appellant's daughter and spent the night at appellant's house. N.L. was not tired, and she stayed up on the couch with appellant. Appellant told N.L. he wanted her, and she said she wanted him. Appellant took off N.L.'s clothes, and she lay down on her stomach. N.L. felt appellant "putting his thing in like my butt, you know." By "thing," N.L. testified, she meant his penis. N.L. further testified appellant's penis was "in the fold" of her buttocks, and it was "uncomfortable" and "just felt weird." Appellant ejaculated in his hand and went to the kitchen to wash his hand. N.L. and appellant talked some more, and N.L. went to bed. The next morning, appellant woke N.L., and she wanted him to stay home from work so that she could be with him. Appellant was not able to stay home, but he stayed for a little while and asked N.L. to have sex with him. N.L. was uncertain about having sex, but she ultimately said she would. Again, appellant took off N.L.'s pajamas and his clothes and "put his penis in [N.L.'s] vagina. N.L. testified it hurt and was "like a burn" when appellant put his penis in her vagina. N.L. said she wanted appellant to "do it the other way" which meant "from the back." Appellant then put his penis in "the fold" of her buttocks "the same way we did the first time." Appellant was subsequently indicted for three counts of aggravated assault. The indictment alleged appellant twice caused the anus of N.L. to contact his male sexual organ and that he once caused the penetration of N.L.'s female sexual organ with his male sexual organ. A jury convicted appellant of all three counts, and this appeal followed. In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues the evidence is legally insufficient to show contact with N.L.'s anus, and the evidence is factually insufficient to show that any sexual contact occurred. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child to contact or penetrate the sexual organ of another person, including the actor, and the victim is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2006). Here, the record contains N.L.'s testimony that appellant put his penis in her "butt" when she was twelve years old. N.L. testified appellant put his penis in her vagina the next morning and then again put his penis in the "fold" of her buttocks just as he had the night before. Appellant presented testimony from his Daughter C.B., thirteen at the time of trial, that N.L. had said at school that nothing happened between N.L. and appellant. H.W., thirteen at the time of trial, and L.W., twelve at the time of trial, also testified N.L. told them nothing happened between her and appellant. Appellant also testified that nothing happened between him and N.L. Appellant also argues that the other people in the house and the configuration of the house would have led to discovery of the assault if it had happened. However, the jury was free to believe N.L.'s testimony and disregard the evidence that the house was not an ideal setting for an aggravated sexual assault, N.L. denied the assault in front of her friends at school, and appellant said nothing happened. We note the State only had to prove appellant's penis made contact with N.L.'s anus. We have reviewed the record, and it appears the evidence was legally and factually sufficient to show that appellant's penis made contact with N.L.'s anus as alleged in the indictment and that he also put his penis inside N.L.'s vagina. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. We overrule appellant's first and second issues. In his third issue, appellant argues the trial court erred in admitting testimony concerning an unadjudicated extraneous offense. Specifically, appellant complains of Vanessa Pollock's testimony that appellant sexually assaulted her thirteen years earlier when she was twelve years old and appellant was nineteen. At trial, appellant objected that this evidence was inadmissible under rules of evidence 403, 404, and 405. In his brief, appellant complains the extraneous offense was not similar enough to the charged offense to be admissible to rebut his defensive theory, it was too remote in time from the charged offense, and its prejudicial effect outweighed its probative value. Rule of evidence 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). For example, evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Id. Rebuttal of a defensive theory such as mistake or accident is also one of the permissible purposes for which relevant evidence may be admitted under rule 404(b). Id. However, even if the evidence is relevant, and the purpose for which it is being offered is permissible under rule 404(b), it may still be excluded under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id. In a sexual assault case, an extraneous offense may be admitted to rebut the defense that the defendant is the innocent victim of a frame-up by the complainant or others. Wheeler v. State, 67 S.W.3d 879, 887-88 n. 22 (Tex.Crim.App. 2002). A trial court's admission of extraneous offense evidence is reviewed for an abuse of discretion. Moses, 105 S.W.3d at 627. Whether extraneous offense evidence has relevance apart from character conformity, as required by rule 404(b), is a question for the trial court. Id. When a trial court further decides not to exclude the evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference. Id. Here, appellant testified he did not have sex with N.L. or kiss her on the couch and never had sex with her in the bedroom. Appellant testified that N.L.'s testimony about having sex with appellant was not true, and he did not know why N.L. said she had sex with appellant "other than being upset with my wife." The State offered Pollock's testimony that, when she was thirteen years old, she was babysitting for Monique Braz, appellant's wife at the time of the charged offense, and appellant came over and said he was a friend of the family. "One thing led to another," and Pollock and appellant had sex in Monique's bedroom. Appellant objected to this testimony under rules 403, 404, and 405. The State responded that the testimony was admissible because the victims were close in age: N.L. was 12 at the time appellant sexually assaulted her, and Pollock was thirteen; appellant had sex with both underage girls in Monique's bedroom; and appellant used Monique's daughter to get to both victims: N.L. was a friend of Monique's daughter, and Pollock was babysitting Monique's daughter. The State further argued evidence of the assault on Pollock was important to rebut appellant's defensive theory that nothing happened with N.L. and N.L. was a liar and a fabricator. After hearing arguments from both sides, the trial court admitted the evidence of the assault on Pollock to rebut the defensive theory of fabrication. The trial court instructed the jury that it could not consider evidence of an offense other than the charged offense for any purpose unless it determined appellant committed the other offense beyond a reasonable doubt. Even then, the jury was instructed to only consider the other offense to rebut the defensive theory of fabrication. Having reviewed the record and the testimony in this case, we cannot conclude the trial court abused its discretion in admitting Pollock's testimony to rebut the defensive theory of fabrication. See Moses, 105 S.W.3d at 627. As to appellant's argument that the assault on Pollock was too remote from the assault on N.L. and therefore inadmissible under rule 403, we must consider (1) how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable; (2) the extraneous offense's potential to impress the jury in some irrational but indelible way; (3) the trial time that the proponent will require to develop evidence of the extraneous misconduct; and (4) the proponent's need for the extraneous transaction evidence. Wheeler, 67 S.W.3d at 888 (holding trial court did not abuse its discretion in admitting evidence of extraneous sexual assault nine years prior to charged sexual assault). The extraneous offense against Pollock served to show that it was more probable that appellant would sexually assault girls younger than fourteen, the jury was given a limiting instruction to consider Pollock's testimony only to rebut the defensive theory of fabrication, Pollock's testimony was brief, and, without Pollock's testimony, the State only had N.L.'s testimony to prove the charged offenses took place — testimony contradicted by appellant's testimony and the testimony of friends of N.L. that N.L. said nothing happened between her and appellant. Under these circumstances, the trial court did not abuse its discretion in admitting evidence of the assault against Pollock even though it occurred eleven years prior to the charged offense. See Wheeler, 67 S.W.3d at 888-89. We overrule appellant's third issue. We affirm the trial court's judgment.