Opinion
Nos. 05-04-00642-CR, 05-04-00643-CR
Opinion issued August 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st District Court, Collin County, Texas, Trial Court Cause Nos. 401-80624-03; 401-80625-03. Reversed and Rendered in Part, Affirmed in part.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Patrick Allen Dyer appeals his indecency with a child conviction in cause number 05-04-00642-CR and his aggravated sexual assault, sexual performance by a child, and possession of child pornography convictions in cause number 05-04-00643-CR. A jury convicted appellant of each offense, and the trial court sentenced appellant twenty years' confinement in cause number 05-04-00642-CR and fifty, twenty, and ten years' confinement in the counts in cause number 05-04-00643-CR. In one point of error in cause number 05-04-00642-CR and five points of error in cause number 05-04-00643-CR, appellant argues the trial court erred in allowing the State to introduce evidence of an inflammatory "bad act," the evidence is legally and factually insufficient to show penetration, and the evidence is legally insufficient to prove it is appellant's hand in certain photographs, he caused a sexual performance by a child, or he possessed child pornography. We reverse appellant's conviction for possession of child pornography and render a judgment of acquittal for that offense. In all other respects, the trial court's judgments are affirmed. C.D., twelve years old at the time of trial, testified appellant is her father. After appellant and C.D.'s mother separated, C.D. had visitation with appellant. In March 2000, eight-year-old C.D. was sitting on the couch in her grandmother's living room when appellant came in and sat on the floor next to the couch. C.D.'s grandmother and brother P.D. were also present. C.D. and appellant often tickled each other, and on this occasion appellant tickled C.D. repeatedly. In the course of tickling C.D., appellant's hand moved down "in front where [C.D. uses] the restroom." C.D. testified she refers to that area of her body as her vagina. Through C.D.'s clothes, appellant tried to push in for two seconds, but his finger went in only "slightly." C.D. told appellant to stop, and they stopped tickling each other. P.D. saw what happened and later told C.D.'s mother about it. C.D.'s mother called police, and C.D. gave a videotaped statement. However, C.D. did not mention that appellant had tried to push his finger inside her because she "was scared something bad was going to happen to him." C.D. returned to regular visitation with appellant, and for a time nothing "weird" happened. P.D. was also present during these visits. Appellant once asked C.D. to tape record a statement that he did not do anything to her, but she refused because it would have been a lie. On December 13, 2002, P.D. had a sports tournament, and C.D. went to visit appellant alone. Appellant and C.D. made Christmas gifts, and C.D. composed a poem on the computer in appellant's bedroom. Appellant brought C.D. some pizza and a vanilla Coke. C.D. thought the Coke tasted "weird," but appellant said "it must be the ice." After drinking about two-thirds of the Coke and running an errand to a store, C.D. felt sleepy. She lay down on the couch with a pillow and a blanket and fell asleep with appellant sitting on the floor beside the couch. About forty minutes later, C.D. woke up and saw appellant had his head under her blanket, and her pants and underwear had been taken off. C.D. got up and noticed she was wet in her vagina area from "discharge from [her]self" before getting fresh underwear and tighter pants. While C.D. got new clothes and a sleeping bag, appellant remained sitting on the floor and the blanket remained over his head. C.D. was very scared, but appellant did not respond when she called his name, and she went back to sleep. When C.D. woke up, appellant was in his room with the door closed. C.D. looked for the clothes that had been taken from her, and she found her underwear "on the toilet opened up" and her pants under a blanket at the end of the couch. That day, appellant acted as if nothing had happened, and he took C.D. to a basketball game. C.D.'s mother was one of the coaches, but C.D. did not tell her about the incident because she thought "it would make just a big scene." Appellant and C.D. picked up P.D., bought some more materials for the Christmas gifts, and returned to appellant's apartment. Nothing unusual happened that night, and appellant took C.D. and P.D. back to their mother's house the next day. C.D. told her mother what happened, and her mother took her to the hospital where a rape exam was conducted. C.D. received counseling during the course of which she revealed the incident that had taken place in March 2000. Appellant was subsequently charged with the underlying offenses. At trial, the State introduced pictures recovered from appellant's computer showing a nude female body and a hand touching the vagina. C.D. testified it was her body in the picture and appellant's hand. The State introduced the shorts C.D. was wearing in some of the pictures. C.D. further testified appellant would often close his door and sit at his computer and look at naked women with a towel over his legs. On the occasions when C.D. walked in on him in this position, appellant minimized the screen and pretend to be playing solitaire. At the close of the evidence, the jury convicted appellant in the above-numbered causes, and this appeal followed. In his first issue in cause number 05-04-00643-CR, appellant argues the evidence is legally and factually insufficient to establish the element of penetration necessary for an aggravated sexual assault conviction. 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. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). Penetration is an element of the offense of sexual assault. See Tex. Pen. Code Ann. § 22.011 (Vernon 2003). Here, the record contains several pictures of C.D.'s genitals. In one picture, a hand C.D. testified belonged to appellant is shown directly next to C.D.'s genitals. Beth Hudson, a sexual assault nurse examiner, testified appellant's finger depicted in the picture penetrates the female sexual organ shown because it has passed beyond the labia majora. We have reviewed the record, and we conclude the picture itself, along with C.D.'s and Hudson's testimony, constituted legally and factually sufficient evidence that appellant penetrated C.D.'s female sexual organ. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first issue in cause number 05-04-00643-CR. In his second issue in cause number 05-04-00643-CR, appellant argues the evidence is legally insufficient to prove it is appellant's hand shown touching C.D.'s female sexual organ. On the contrary, the record contains C.D.'s testimony that she recognized her body in the photographs and recognized the shorts, underwear, sleeping bag, and couch depicted in the photographs. C.D. also testified she recognized her father's hand in the photographs. We conclude this evidence is legally sufficient to prove appellant's hand is depicted in the photographs. See Jackson, 443 U.S. at 319. We overrule appellant's second issue in cause number 05-04-00643-CR. In his third issue in cause number 05-04-00643-CR and his sole issue in cause number 05-04-00642-CR, appellant argues the trial court erred in admitting evidence of an inflammatory "bad act." Specifically, appellant complains of the admission of evidence that C.D. had seen appellant sitting at his computer with a towel over his legs and looking at naked women. At trial, appellant objected to C.D.'s testimony concerning this behavior. However, appellant did not object when the State examined Plano police officer Kathy Stamm concerning her interview with appellant. Stamm testified, without objection, that appellant admitted to wrapping a blanket around himself while at the computer and masturbating at a time when his children could have walked in on him while he was looking at pornography. Any error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). Thus, any error in the admission of C.D.'s testimony was cured by Stamm's subsequent testimony to which appellant did not object. See id. We overrule appellant's third issue in cause number 05-04-00643-CR and his sole issue in cause number 05-04-00642-CR. In his fourth issue in cause number 05-04-00643-CR, appellant argues the evidence is legally insufficient to show he committed the offense of sexual performance by a child. A person commits the offense of sexual performance of a child if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than eighteen years of age to engage in sexual conduct or a sexual performance. Tex. Pen. Code Ann. § 43.25(b) (Vernon Supp. 2004-05). "Performance" means, among other things, any photograph or other visual representation that can be exhibited before an audience of one or more persons. Id. § 43.25(a)(3). Here, the evidence showed appellant took and kept photographs of C.D.'s genitals when she was eleven years old. We conclude this is legally sufficient evidence to support appellant's conviction for sexual performance of a child. See Jackson, 443 U.S. at 319. We overrule appellant's fourth issue in cause number 05-04-00643-CR. In his fifth issue in cause number 05-04-00643-CR, appellant argues the evidence is legally insufficient to support his conviction for possession of child pornography. The State concedes that the evidence is legally insufficient to support appellant's possession of child pornography conviction. Accordingly, appellant's fifth issue in cause number 05-04-00643-CR is sustained. We reverse appellant's conviction for possession of child pornography and render a judgment of acquittal for that offense. In all other respects, the trial court's judgments are affirmed.