No. 05-04-01232-CR
Opinion Issued April 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-71229-JV.
Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
Opinion By Justice MAZZANT.
A jury convicted Lamont Foster of aggravated sexual assault of a child younger than fourteen years. The trial court assessed punishment at fifteen years' confinement. 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
K.F., the nine-year-old complainant, testified appellant had touched her private part once while she was at her father's house and once when she was at her aunt's house. Appellant, K.F.'s father's first cousin, babysat K.F., her sister, and her cousins often. K.F. testified that one evening while her father was at work, appellant was babysitting her and her sister at the father's house. K.F. sat on the couch and watched television while her sister took a shower. Appellant sat down next to K.F., put his hand inside her pants, and touched K.F.'s vagina with his hand. K.F. got up and went to another room. K.F. testified she did not tell anyone because she was afraid she would be in trouble and that appellant would kill her. K.F also testified about the second incident that happened when K.F. and her sister were at her aunt's house. Aunt and Uncle went out for the evening, and appellant babysat. K.F. was sitting on a bed in her cousin's room watching television while her sister and cousins were in another room playing. Appellant sat on the bed next to K.F., put his hand underneath her clothes, and touched K.F.'s "private part on the inside." K.F. got up and went into the room in which her cousins were playing. K.F. testified she did not tell anyone because she thought she would be in trouble. K.F testified that after Aunt read K.F.'s diary, Aunt asked K.F. if something had happened. K.F. had written the words "Lamont had sex with me" in the diary. K.F. testified she did not know what the words meant. K.F. did not tell Aunt that appellant only touched the outside of her pants. K.F. testified that although she had told Aunt a few lies in the past, she was not lying about what appellant had done to her. K.F. further testified she did not remember telling the prosecutor that appellant put his finger insider her private part, but that if she did, that would be the truth. K.F.'s aunt testified that K.F. and her sister spent a lot of time at her house and that appellant babysat the children often. On January 1, 2003, when K.F. was seven years old, Aunt found a diary when she was cleaning the house. After reading the diary, Aunt questioned K.F. and her sister about who owned it. K.F. initially denied it belonged to her then admitted she had written the words in the diary. Aunt asked K.F. when the event happened, and K.F. told Aunt that when appellant was babysitting at Aunt's house, he brushed against K.F.'s pants on her "private area." Aunt testified K.F. told her only about the one incident and that the touching was only on the outside of her clothing. Aunt said she tried to telephone K.F.'s father, who was separated from K.F.'s mother, but she could not reach him. Aunt did not have a contact number for K.F.'s mother. Aunt did not call the police because K.F. had been known to not tell the truth, and Aunt wanted to talk with K.F.'s father first. The next morning, K.F.'s mother picked up K.F. and her sister. About four minutes after they left, K.F.'s mother called Aunt. K.F.'s mother was upset and hysterical, and she demanded to know why she had not been called earlier and what had been said. Aunt further testified that K.F. has lied to get out of trouble or about "kid stuff," but she did not believe K.F. would lie about "this sort of thing." K.F.'s mother testified she found out about what appellant had done to K.F. when she picked up K.F. from Aunt's house on January 1, 2003. While driving in the car, K.F. told Mother appellant had touched her. Mother became hysterical and upset. Mother called Aunt and demanded to know why no one had called her about the situation. Mother called the police that same day, and she took K.F. to talk with someone at the Dallas County Advocacy Center. After K.F.'s interview there, a detective told Mother specifically what K.F. had said that appellant had done to her. Mother testified K.F. had been having a very hard time in school prior to the allegations being made known. However, after K.F. talked to Mother and the detective, K.F.'s behavior changed. K.F.'s teachers and the school principal noticed how well K.F. was doing in school and how well K.F. got along with the other children after the allegations against appellant were made known. Mother testified K.F. acted as if something had been lifted off her shoulders. Dallas police officer Douglas Foor testified he talked with K.F.'s mother on January 1, 2003 about the allegations against appellant. Foor testified his role was to gather information from the parents and to leave the trained investigators to talk with the child. K.F.'s mother told Foor that there was more than one instance of the alleged abuse. Detective Patricia San Martino testified she observed and videotaped K.F.'s interview at the Dallas Children's Advocacy Center. San Martino testified K.F.'s story has been consistent and that K.F. stated she was sitting down both times appellant touched her private part. San Martino further testified the interview revealed that there had been penetration of K.F.'s vagina by appellant's finger. Allison Medina, a forensic interviewer, testified she interviewed K.F. The interview was observed and videotaped by a police detective behind a two-way mirror. Medina testified that K.F. was seven years old at the time of the interview. K.F. said appellant had touched her in her "private spot" with his finger. K.F. said she was at her father's house watching television in the den. Appellant pulled down her underwear and touched her on her private spot. Medina testified that K.F. demonstrated with a toy bunny by moving her finger in a circular motion. K.F. told Medina she was wearing a nightgown and underwear. Appellant pulled down her underwear and touched her on the inside of her private spot. Appellant told K.F. not to tell anyone. K.F. stated it also happened at her aunt's house. Appellant had called K.F. into the den and touched K.F. on top of her clothes on her private spot. Medina testified that when she initially began the interview, K.F. stated appellant had raped her. K.F. explained that to rape someone meant to touch someone in the wrong way. Medina testified that she had interviewed over one thousand child sex abuse victims, she believed K.F.'s allegations, and she did not see any evidence that K.F. had been coached. K.F.'s uncle and paternal grandmother testified on appellant's behalf. Both testified that appellant got along with all of the children in the family, all of the children liked appellant, and that appellant babysat all of the children often. Uncle further testified that K.F. has told lies in the past, but with a little prodding, they always got the truth from K.F. Grandmother testified that K.F. tells lies about "kid's stuff," like denying running in the house. Appellant denied that he put his finger in K.F.'s vagina. Appellant testified he has never done anything sexually inappropriate to K.F. or any child, and he would never do anything to harm a child. Appellant testified he could not think of any reason why K.F. would come up with these allegations, other than K.F. needing some attention because K.F.'s father recently had a baby with another woman. Appellant also testified K.F.'s mother might have had something to do with K.F. making the allegations in order to get back at K.F.'s father. Appellant testified he had previous convictions for possession with intent to deliver cocaine, assault, and criminal mischief. Appellant admitted that in a letter he wrote to the district attorney's office, he said he was in jail when the alleged abuse happened, but that he had made a mistake about the time frame because he was released from jail in December 2001 and the alleged abuse was on or about December 2002. 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, 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.). 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 penetration of the sexual organ of K.F., a child under the age of fourteen, by his finger. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(I) (Vernon Supp. 2004-05). 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 Supp. 2004-05); 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 K.F. was not credible. Appellant asserts the evidence shows K.F. is known to lie, K.F. did not tell family members that appellant had penetrated her private parts, and K.F. did not recall telling the prosecutor that appellant had penetrated her private parts. Appellant argues the evidence shows K.F. made up the allegations and that statements in K.F.'s diary were inconsistent with her testimony at trial. The State responds the evidence is legally and factually sufficient to support the conviction because K.F. clearly testified to the elements of the sexual assault in front of the jury. There was conflicting evidence presented in this case about when K.F. told various family members about the incidents of sexual abuse, whether K.F. told family members and the police there were two incidents of sexual abuse, K.F. having lied in the past about some things, and whether K.F. could be lying about the allegations against appellant. However, K.F. testified that appellant had touched her "private part on the inside." Further, the forensic interviewer testified that K.F. told her appellant had pulled down K.F.'s underwear and touched her on the inside of her "private spot." Appellant essentially asks this Court to find that K.F.'s testimony-and that of the forensic interviewer-was not as credible as his own testimony. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve the conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.