Opinion
No. 11-15-00102-CR
06-22-2017
On Appeal from the 385th District Court Midland County, Texas
Trial Court Cause No. CR43663
MEMORANDUM OPINION
The jury convicted Gary Don Click of sexual assault. See TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2011). The jury assessed his punishment at confinement for thirty years and a $5,000 fine. Appellant presents one issue on appeal. We affirm.
Appellant challenges the sufficiency of the evidence with respect to his conviction. Appellant specifically argues that the State failed to present evidence of lack of consent.
We review the sufficiency of the evidence, whether denominated as a legal or a factual sufficiency claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere "modicum" of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320).
On May 31, 2014, Appellant met with his former live-in girlfriend, Terri Sue Clay, supposedly to drop off some of her things, and he talked her into going to dinner with him. Afterwards, Appellant and Clay went to Appellant's home and drank tequila. Appellant went to the bedroom, and when Clay did not join him in the bedroom, Appellant told her to leave. Clay testified that, when she tried to leave, Appellant "picked [her] up like an hourglass and tipped [her] over head first," took her pants off, and tried to have anal intercourse with her. Clay suggested that Appellant get lubrication from the bedroom, and when Appellant went into the bedroom, Clay, dressed only in a shirt, ran out of the house. Appellant caught Clay and physically dragged her back inside.
After Appellant took Clay back into his house, he penetrated Clay's anus with his penis. Clay testified that she did not consent to the sexual activities with Appellant and that, during the penetration, she "was screaming bloody murder and hoping somebody would hear [her]." When Appellant fell asleep, Clay left the house and ran to a convenience store to call the police.
Georvarsey Mitchell, a detective with the Midland Police Department, took Clay to the hospital where she had a SANE examination. Emily Huggins, a nurse manager at Health South Rehab Hospital, performed the SANE examination on Clay. Huggins noted fresh scarring and abrasions on Clay's legs and abrasions on Clay's anus and anal verge. Daniel Jay Lindley, a forensic scientist for the Texas Department of Public Safety, determined that, to a reasonable degree of scientific certainty, Appellant's semen was on the anal swab taken during the SANE exam. Lindley concluded that the stains on Clay's panties were Appellant's semen.
A person commits the offense of sexual assault if he "intentionally or knowingly . . . causes the penetration of the anus or sexual organ of another person by any means, without that person's consent." PENAL § 22.011(a)(1)(A). Appellant argues that Clay tried to initiate the anal intercourse and that Clay asked Appellant to get lubrication. Additionally, Appellant said that Clay never told him no.
Clay testified that she told Appellant that she did not want to have intercourse with him. Clay told the jury that, when she got the opportunity, she tried, unsuccessfully, to run away from Appellant during the incident. After the incident, Clay ran away from Appellant and immediately informed the police about the assault. Under Article 38.07 of the Texas Code of Criminal Procedure, a conviction for sexual assault is sufficiently "supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred." TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); see Martinez v. State, 178 S.W.3d 806, 812 (Tex. Crim. App. 2005). Further, the jury, as the factfinder, can accept or reject any or all of the testimony of each witness. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
Accordingly, viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found all of the elements of the offense of sexual assault beyond a reasonable doubt. Therefore, the evidence is sufficient to support Appellant's conviction. Appellant's sole issue on appeal is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE June 22, 2017 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.