No. 05-06-01118-CR
Opinion issued July 30, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 15th Judicial District Court Grayson County, Texas, Trial Court Cause No. 051123.
Before Justices MORRIS, FRANCIS, and MAZZANT.
Opinion By AMOS L. MAZZANT, Justice.
A jury convicted Howard Craven, Jr. of aggravated sexual assault of a child younger than fourteen years. After finding an enhancement paragraph true, the trial court assessed punishment at seventy-five years' imprisonment to be served consecutively with a ninety-nine-year sentence from a prior conviction in another county. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
The indictment against appellant alleged that on October 19, 2003, he committed the aggravated sexual assault of N.F., the complainant, by penetrating the child's sexual organ. N.F. testified she was twelve years old when appellant sexually assaulted her. Appellant and N.F.'s mother were "best friends," and N.F. looked up to appellant as a father figure. N.F. testified the sexual assault took place in appellant's car. Appellant had taken N.F. with him while he drove to his house to pick up some homemade wine he wanted to get for N.F.'s mother. Appellant had been at N.F.'s older sister's house visiting when he decided to get the wine. He asked N.F.'s mother's permission for N.F. to ride with him. N.F. testified appellant drove to a vacant house "out in the country" near where appellant lived and parked behind it. It was dark outside but she could see the house had an air conditioner sticking out of a window. Appellant got out of the car, took off his clothing, took off N.F.'s clothing, and ordered her to lay down in the back seat. Appellant initially put his penis in N.F.'s anus, then said, "[t]hat is the wrong hole" before he put his penis in her vagina. N.F. testified she put her hands over her eyes and cried while appellant was on top of her. When appellant got up, he ordered N.F. to "go pee." After making N.F. squat on the ground until she urinated, appellant wiped her with "baby wipes" he got from his car. Appellant drove to his house, went inside, then came back out to the car with wine and "some cream." Appellant told N.F. to put the cream on her vagina. When she questioned whether to put the cream inside or outside, appellant said, "[d]amn, do I have to do everything?" Appellant put the cream inside N.F.'s vagina. N.F. testified she did not tell her mother about the sexual assault because appellant told her not to tell anyone. Appellant told her that if she told anyone about what he was doing to her, he would go to jail and no one would help her family. N.F. testified that several days after the sexual assault, her mother found out appellant was having a sexual relationship with N.F.'s adult sister. N.F.'s mother asked her if appellant had "touched her." When N.F. said yes, her mother immediately called the police. N.F. also testified about several notations she wrote in her school calendar, which she used as a daily diary. These notations included: on October 6, 2003, "he tried to eat me out;" on October 10, 2003, "I love Howard as a friend;" on October 12, 2003, "Howard first ate me out and he kissed me" and "HC ate me out and he made me suck his dick;" on October 20, 2003 "I had sex with Howard Craven" and "kissed me and fingered me;" and on October 21, 2003, "I feel different about Howard. I wish he didn't make me have sex with him." N.F. testified she sometimes wrote items in a space on the day following an event if a particular day's space was already full. N.F. also described several incidents with appellant that occurred prior to the sexual assault charged in this case. In the first incident, N.F. was riding with appellant in his car when he put his finger in N.F.'s vagina. In the second incident, N.F. was visiting at appellant's son's house. Appellant took N.F. into the bathroom, performed oral sex on N.F., then put his hand behind N.F.'s head and made her perform oral sex on him. In the third incident, N.F. was riding with appellant after being picked up from her grandmother's house, when he pulled over to the side of the road and performed oral sex on N.F. N.F.'s mother testified she met appellant in 1989, considered him a friend, and had an "off and on" physical relationship with him. Appellant sometimes attended church with her and her children, gave her children gifts and praise for their report cards, and was involved in their lives. In October 2003, N.F.'s mother became aware that appellant had a sexual relationship with her oldest daughter, who was twenty-six years old at that time. N.F.'s mother asked N.F. if appellant "ever put his hands on you or tried to have sex with you." N.F. said yes, then cried. N.F.'s mother immediately called the police, then sat down with N.F. N.F.'s mother testified N.F. told her appellant took her to an abandoned house, made her get in the back seat of his car and take off her clothes, then raped her. After the assault, appellant drove N.F. back to his house and made her wait in the car while he went into the house, returning with cream and antibacterial wipes. Appellant made N.F. use the bathroom, "then wiped her and cleaned her up." N.F.'s mother testified that sometime after she talked with the police, appellant called her on the telephone and apologized. Appellant said, "Baby, baby, I am sorry. I am really sorry." She "told him that hell wasn't good enough for him" and hung up the phone. David Sikes, a Grayson County Sheriff's criminal investigator, testified he observed N.F.'s interview with Child Protective Services in October 2003. N.F. said appellant sexually assaulted her at a blue house on the north side of a country road a short distance west of appellant's house, and that the house had an air conditioner in the window. Sikes testified he located a vacant house on Hayden Hill Road that was a half-mile from appellant's residence on Hayden Hill Road. The house was "out in the country with lots of land around it," and had air conditioning units in two windows. Carolyn Ridling, a sexual assault nurse examiner, testified that on October 28, 2003, she examined N.F. During the oral history portion, N.F. told Ridling about several occasions where appellant put his fingers in her vagina, occurring usually when she was alone with appellant in his vehicle. N.F. said that on October 20, 2003, she went with appellant to get homemade wine from his house. Appellant stopped his car in back of a vacant house, took off his clothes, took of N.F.'s clothes, made her lay in the back seat of the car, then inserted his penis in her vagina. N.F. also told Ridling that appellant made her perform oral sex on him once, and appellant performed oral sex on her on two or three occasions. Ridling testified that during the physical examination, she found two areas on N.F.'s hymen that had well-healed tears, which indicated some type of penetration had occurred at some unknown time more than seventy-two hours prior to the exam. Four witnesses testified on appellant's behalf. Kenneth Fields, one of appellant's friends, testified he did not know N.F. but he knew her mother, and N.F.'s mother did not have a reputation for being truthful. Lillian McLean, appellant's sister-in-law, testified that on October 19, 2003, the date of the sexual assault alleged in the indictment, appellant attended their church's anniversary services with his wife. Willis Brown testified he knew N.F. and her mother and had seen N.F. at appellant's son's house drinking alcohol. Lola Craven, appellant's wife, testified their church had its anniversary on the third Sunday in October of each year, and October 19, 2003 was the church's anniversary services. She and appellant were at the church all day for the celebration. She saw N.F. and her mother at the church that day, but appellant did not leave with N.F. She and appellant left the church sometime between 5:30 p.m. and 6:30 p.m., went home, and stayed there the rest of the night. Appellant was also at home on the evenings of October 18, 2003 and October 20, 2003. Lola denied that she told a detective she knew N.F. had been at her son's house on several occasions or her mother's house a few times. Lola further testified she did not tell the police about appellant's alibi because no one asked her about appellant's whereabouts on those dates. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain a conviction for aggravated sexual assault of a child younger than fourteen years, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the contact or penetration of the female sexual organ of N.F., a child under the age of fourteen, by appellant's sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2006). The State may prove penetration by circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990) (en banc). Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt. See Luna v. State, 515 S.W.2d 271, 273 (Tex.Crim.App. 1974). The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Discussion
Appellant argues the evidence is legally and factually insufficient because there is no more than a mere modicum of evidence to show he penetrated N.F.'s vagina. Appellant asserts that because a nurse was not able to tell when the injury to N.F.'s hymen occurred, and appellant had an alibi on the alleged date of the offense, the evidence is insufficient. The State responds that the evidence is both legally and factually sufficient to show appellant sexually assaulted N.F. The jury heard N.F.'s testimony describing penetration. See Villalon, 791 S.W.2d at 134; Luna, 515 S.W.2d at 273. N.F. testified appellant put his penis in her vagina. N.F. also testified appellant put his fingers in her vagina and performed oral sex on her on more than one occasion. Ridling testified that when she examined N.F., she found there were two "well-healed" tears on N.F.'s hymen, which indicated some type of penetration more than seventy-two hours prior to the examination. Appellant's wife testified appellant was not alone with N.F. at any time because he was at home on the evening of the alleged sexual assault, and appellant was also home on the evenings before and after the date of the alleged sexual assault. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 415; Lane, 151 S.W.3d at 191-92. We overrule appellants two points of error. We affirm the trial court's judgment.