No. 05-08-01206-CR
Opinion Filed July 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-34931-HP.
Before Chief Justice WRIGHT and Justices LANG-MIERS and MALONEY.
The Honorable Frances Maloney, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted appellant Jeffrey Connell of aggravated sexual assault and assessed a thirty-five-year sentence. In two issues, appellant contends no legal and factual evidence exists to establish penetration. We affirm the trial court's judgment.
BACKGROUND
The complainant lived with Rosa and Sam Pevehouse, her aunt and uncle, until she was about twelve years old. Rosa, Sam, and appellant worked together, shared an apartment in the "eighties," and drove to work together after they no longer lived together. Even after appellant no longer lived with them, he often would spend the night at Rosa's and Sam's home. When appellant spent the night there, he spent time in the complainant's room. When the complainant was twelve, Sam died and she left Rosa's house to live with another aunt, Linda Ramirez. Eventually, the complainant moved back into Rosa's house where she lived until she was seventeen. After the complainant turned seventeen, she reported to her teacher that appellant had attempted to rape her. Her teacher notified authorities, and the complainant revealed that appellant had sexually abused her from the age of five until she was twelve. SUFFICIENCY OF THE EVIDENCE
Appellant argues that the evidence is legally and factually insufficient because no evidence supports penetration. He maintains we should disregard the complainant's testimony and rely on her affidavit of non-prosecution to show no penetration occurred. The State responds the record does not support his claims. Additionally, the State argues that the complainant did not write or understand the affidavit and "appellant's self-serving voluntary statement" does not "negate" the complainant's testimony. To show the complainant's testimony was not credible, appellant also relies on the complainant's hesitant trial testimony, a videotaped interview Irving Police Officer James Sears conducted in which he displayed apparent hostility toward the complainant, her inconsistent statements in that interview, and Rosa's allowing appellant to continue living in the home. The State responds that appellant's argument ignores the complainant's clear and consistent description of sexual abuse. Additionally, the State relies on the videotape and Sears's testimony to negate appellant's argument. THE EVIDENCE 1. James Sears
Sears, an Irving police sergeant, testified that at the time this offense occurred, he was a detective handling child abuse cases. After receiving a report, he interviewed the complainant for some thirty to forty-five minutes. He videotaped the interview. Next, he interviewed appellant, the person the complainant "claimed" to have molested her. Although Sears did not videotape appellant's interview, appellant did give a written statement. The trial court admitted appellant's statement in which he denied penetrating the complainant, but admitted "touching on her" and being "on drugs and didn't know what I was doing half of the time." Sears was unable to determine the exact date of the offense, but he put the time around January 15, 1997 before the complainant had her thirteenth birthday. On cross-examination, Sears explained he had interviewed the complainant on December 8, 2004 because of an incident that occurred a few days earlier. He admitted not filing a case on the December charge because the complainant did not initially "allege [sic] a touching." Appellant questioned Sears on why the videotape showed him leaving the room and stating when he came back he wanted the truth. He had confronted the complainant about her telling different "stories." Sears explained that he employed this tactic to get to the truth. Appellant questioned Sears if appellant had specifically denied penetrating the complainant. Sears maintained that guilty people tend to minimize their roles, but innocent people completely deny any involvement. 2. The Complainant
The complainant testified that she and her sister had lived with Rosa and Sam since she was a baby. Her cousins Chris, Gabriel, and Doreen also lived there. When the complainant was six years old, she moved into her Aunt Linda's house because Sam had died. She lived there until she was seventeen and then she moved back to Rosa's house. At the time, appellant was living with Rosa, but the complainant moved in to help take care of her grandmother. When the complainant was younger, she was scared whenever appellant came to Rosa's house because she knew he would "mess with her." At night, when her sister was asleep, appellant would come into her room and touch her vagina with his fingers, both on the outside and inside. Appellant began this touching when she was in pre-kindergarten. The complainant never told anyone about the touching until she was in the seventh grade and living at Linda's house. Her sister, cousin, and aunt noticed that whenever appellant would come to Linda's house, the complainant would not come out of her room. When the complainant was a freshman at school, the vice principal of her school called the police so that the complainant "would be safe" and it would not happen again. She went to a shelter and never went back to Rosa's house. The complainant remembered going to an office and signing a piece of paper but could not remember anything about it. The paper was an affidavit of non-prosecution (affidavit). She only read part of it because she didn't have her glasses. The State handed the complainant the affidavit that she had signed and asked her to read it. The complainant could not read it because it was too blurry and she did not have her glasses. On cross-examination, the complainant admitted signing the affidavit in front of someone. She, however, did not remember who was there, where she went to sign it, or what it said. The complainant acknowledged she had a problem with her memory which makes it hard for her to learn. Appellant read the affidavit to the complainant and inquired if she remembered saying those things-she did not. On redirect examination, the State asked the complainant if she understood what appellant read to her. She replied she understood parts of it. When asked directly if she ever told anyone it was not true that appellant touched her vagina, she replied, "no." The complainant did not remember telling anyone to write the statement contained in the affidavit. 3. Adam Mayora
Mayora, an Irving Police Department detective, testified that he interviewed the complainant two days after an assault. The complainant appeared scared and upset. Although she seemed "a little bit . . . slow," she had no doubts about what happened. 4. Linda Carol Ramirez
Ramirez, the complainant's aunt, testified that when she heard of the accusations against appellant, she went to Rosa's house to confront appellant and Rosa about what had happened to the complainant. She asked appellant if he had molested the complainant-he answered "let me explain." He then maintained he did not hurt the complainant, he only fondled her during the time he was doing drugs. Ramirez did not go to the police because appellant told her he had already been to the police. Appellant told her that he had admitted to the police that he "had did it." Ramirez explained that she had been involved in raising the complainant. The complainant had trouble communicating, always had special classes, and had learning difficulties, but could remember numbers "like crazy." Appellant spent a lot of time at Rosa's house and often spent the night there. Appellant liked to play Nintendo and the Nintendo was in the girls' room. 5. Angela Ramirez Grogg
Grogg, Ramirez's daughter, testified that her mother took guardianship over the complainant and the complainant's brother and sister after Sam died. They all lived together from 1998 until 2003 or 2004. When Sam was alive, Grogg spent a lot of time at Rosa's and Sam's house. Appellant was constantly in Rosa and Nora's room, playing Nintendo. When Grogg would spend the night at Rosa's and Sam's, Grogg would sleep with the complainant in the lower bunk. Grogg was always the last one to fall asleep and appellant "would still be there." Sometimes she would wake up at night and appellant would be coming in the room. He would say he was looking for something and then quickly leave the room. On cross-examination, Grogg explained that seven to eight people could be in the house when she spent the night. Because she was a light sleeper, she could often hear when the bedroom door opened. 6. Rosa Ramirez Pevehouse
Rosa's husband, Sam, and appellant were best friends. Earlier, Rosa and Sam had shared an apartment with appellant and his wife. Eventually, each couple got their own apartment. When appellant and his wife "split up," appellant began coming over to Rosa's and Sam's regularly. Rosa and appellant rode to work together every day and he would often spend the night with Rosa and Sam. Appellant would sleep in their son's room and their son would sleep on the couch. Appellant would go to the girls' room a lot to play Nintendo. The Pevehouses took in the complainant and her sister when the State removed the children from their mother. The complainant was just a baby when she came to live with them. She lived there until she was twelve years old. When Sam died, Rosa moved to North Carolina to work for her company. Rosa returned to Dallas and the complainant, who was in high school, moved back with her. Rosa found out "what happened" when Ramirez told her what the complainant had said. Rosa asked appellant about what the complainant said and he admitted he had "fondled" her. But, he explained it had happened years ago when she was little and he was on drugs. Since then, he had gotten help and it would never happen again. Appellant asked Rosa to forgive him. Rosa admitted she never asked appellant for details. But, appellant wrote a letter, apologizing to the complainant and stating that he never meant to hurt her. Rosa and appellant stayed together. One day, appellant telephoned Rosa at work and said her mom had kicked him out of the house. Appellant told Rosa that he was cheating on her and was leaving. When Rosa returned from work, appellant had moved out. Rosa never missed anything after he left, except she could never find the letter appellant had written. Appellant contacted Rosa and told her that the police were not going to pursue the case because the statute of limitations had run. So, she was unaware that a case was still active until the day before trial began. 7. Cindy Alexander
Alexander, the clinical director at the Dallas Children's Advocacy Center, testified that her organization investigates and treats child abuse in Dallas County and she, herself, is a licensed therapist and social worker. All sexually abused children have difficulty talking about sex, they are embarrassed, and it is a "shameful thing" for them to talk about. Children who have developmental delays are easy targets. These children delay making an outcry for many reasons-sometimes that may not do so until they are adults. They do not want to talk about what happened and frequently recant. STANDARD OF REVIEW a. Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the fact finder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented to the jury. Id. b. Factual Sufficiency
In reviewing the factual sufficiency of evidence, we review all the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We determine the factual sufficiency of evidence by (1) considering if the evidence, although legally sufficient, is "`too weak' to support the jury's verdict" or (2) "considering conflicting evidence, the jury's verdict, though legally sufficient," is nevertheless against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may not reverse for factual sufficiency when the greater weight and preponderance of the evidence actually favors conviction. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Although we have a limited ability to second-guess the jury, we must defer to the jury's verdict and employ a "high degree of skepticism" before reversing. Roberts, 220 S.W.3d at 523. Additionally, we must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). APPLICABLE LAW
A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of child younger than fourteen by any means. Tex. Penal Code Ann. § 22.021 (a)(1)(B)(i), (2)(B) (Vernon Supp. 2009). The complainant's testimony alone can establish penetration. Garcia v. State, 563 S.W.3d 925, 928 (Tex. Crim. App. [Panel Op.] 1978). A child complainant's testimony alone will support an aggravated sexual assault conviction. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). The slightest penetration will suffice to support the indictment. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). We do not sit as a thirteenth juror to reevaluate a witness's testimony merely because the witness used unsophisticated language or had a limited vocabulary. See Villalon v. State,, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). APPLICATION OF LAW TO FACTS 1. Legal Sufficiency
The complaining witness testified that appellant "messed" with her when she younger. He would touch her vagina both on the outside and on the inside. The videotape shows the complaining witness telling Sears that when she was younger, appellant would come into her room and pull her pants down and put his finger in her vagina. The complaining witness's testimony alone supports guilt on penetration. We resolve appellant's first issue against him. 2. Factual Sufficiency
Appellant directs us to the portions of the record showing that complainant's mother and Officer Sears, the investigating detective, had substantial doubts that the allegations were true. Those cited portions of the record show the videotaped interview of Sears questioning the complaining witness. The videotape does show Sears leaving the room and telling her "when I come back I want the truth." Appellant contends that Sears's "confrontational interview" shows that he did not believe her. Sears admitted he did not always conduct interviews that way, but, sometimes he did. Sears explained that he began his videotaped interview to determine what had happened the previous week when appellant "tried to rape her." During that interview, the complaining witness recalled that appellant did the same stuff the he did when she was younger. Then Sears explored those incidents. The jury saw the tape and resolved that issue against appellant. Appellant directs us to testimony showing that complainant's aunt "asked the complainant, not appellant, to leave the house." Actually, the record shows that the complainant was not "allowed to go home" in 2004. After the allegations of sexual abuse came to light, appellant told Rosa he had fondled the complainant while on drugs. Although Rosa allowed appellant to continue to live with her after knowing of the allegations, none of this testimony negates the complainant's testimony of penetration. Appellant recites the complainant's "sworn statement" and recantation and ignores the complainant's testimony that she "did not have her glasses" and could not read the document. When presented with the document in court and asked to read it, she explained she could not read it because she did not have her glasses. After viewing the live testimony and the videotape, the jury was in the best position to judge whether the complainant witness understood the affidavit. We defer to the jury's evaluation of the evidence's credibility and weight. See Swearingen, 101 S.W.3d at 97. After considering all of the evidence, we cannot conclude that proof of appellant's guilt was so weak that it undermines our confidence in the jury's verdict or that it is greatly outweighed by contrary proof. The evidence was factually sufficient to support the jury's verdict. We resolve appellant's second issue against him. We affirm the trial court's judgment.