Nos. 05-01-00549-CR, 05-01-00550-CR.
Opinion Filed January 10, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F99-21722 F99-21723. AFFIRMED.
Before Justices MOSELEY, LANG, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LANG.
Owen Ray Griffin appeals his convictions, after a jury trial, of indecency with a child under the age of seventeen and aggravated sexual assault of a child under the age of fourteen. The trial court sentenced him to ten years confinement for indecency with a child but probated the sentence. The court then sentenced him to forty-five years imprisonment on the aggravated sexual assault conviction. In nine issues, appellant argues that: (1) the trial court erred by limiting his voir dire; (2) the evidence is factually insufficient to prove venue; (3) the evidence is legally and factually insufficient to support his convictions; and (4) he received ineffective assistance of counsel. For reasons that follow, we overrule appellant's nine issues and affirm the trial court's judgments.
Trial cause number F99-21722-JT and appellate cause number 05-01-00550-CR.
Trial cause number F99-21723-JT and appellate cause number 05-01-00549-CR.
Factual and Procedural Background
Appellant is the stepfather of complainant, a thirteen-year-old girl. Appellant lived with complainant and complainant's mother, sister, and brother. In October 1999, appellant and complainant's mother discovered a "slam book" belonging to complainant. A "slam book" is a notebook passed among friends containing gossip and notes to one another. Complainant ostensibly was fearful of punishment from her parent's discovery of the book. Complainant thereafter made an outcry statement to her health teacher, explaining that she was afraid to go home because appellant had been sexually abusing her. She informed her teacher that appellant would sexually abuse her specifically when she got in trouble. Voir Dire Limitation
In his first issue, appellant argues the trial court erred in limiting his voir dire by not allowing him to reference other "high profile" criminal cases. Appellant contends he was not able to properly discuss the burden of proof, the believability of child witnesses, and a defendant's right not to testify because the trial court would not allow him to reference the O.J. Simpson murder trial and the McMartin Day Care case in California. A. Standard of Review and Applicable Law
The propriety of any voir dire question rests within the sound discretion of the trial court and only abuse of that discretion will call for reversal on appeal. Dowden v. State, 758 S.W.2d 264, 274 (Tex.Crim.App. 1988); Smith v. State, 513 S.W.2d 823, 826-27 (Tex.Crim.App. 1974). The trial court has the right to impose reasonable limitations on voir dire. Cantu v. State, 842 S.W.2d 667, 687 (Tex.Crim.App. 1992). Refusing to allow a defendant to ask a proper question, however, constitutes an abuse of discretion. Woolridge v. State, 827 S.W.2d 900, 904 (Tex.Crim.App. 1992) (en banc). A question is "proper" if it seeks to discover a juror's views on an issue applicable to the case. Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985). On the other hand, a trial judge may limit voir dire if: (1) a question commits a venireperson to a specific set of facts; (2) the questions are duplicitous or repetitious; (3) the venireperson has already stated his or her position clearly and unequivocally; or (4) the questions are not in proper form. Dinkins v. State, 894 S.W.2d 330, 345 (Tex.Crim.App. 1995) (en banc). B. Application of Law to the Facts
In this case, appellant complains the court prohibited him from questioning jurors about the O.J. Simpson and McMartin Day Care cases as it relates to: (1) burden of proof, (2) the believability of a child witness, and (3) a defendant's right not to testify. We conclude the trial court did not abuse its discretion by refusing to allow defense counsel's questions regarding the "high profile" cases. First, contrary to the assertions in his brief, the record indicates that appellant generally questioned the venire at great length about the burden of proof and whether the venire would automatically believe the testimony of a child witness. Second, the trial court sustained the State's second objection regarding the O.J. Simpson trial by telling defense counsel, "[d]on't talk about other trials. Otherwise who knows what they'll want to talk about. I don't want to get into that." The trial court certainly did not suggest that counsel was not allowed to talk about the implications of defendant's failure to testify. It appears the choice was entirely defense counsel's as to whether to continue questioning the venire on these issues. Third, even if we were to construe the court's ruling on defendant's failure to testify as error, it would be harmless because the issue was rendered moot by appellant taking the stand and testifying at trial. We conclude the trial court did not abuse its discretion in limiting the voir dire in this case. Accordingly, we resolve appellant's first issue against him. Venue
In his second issue, appellant argues the trial court erred in denying his motion for directed verdict because the evidence is factually insufficient to prove venue in this case. The State counters by arguing that appellant failed to raise the venue issue in his motion for directed verdict and that even if appellant had raised it, the evidence was sufficient to show venue was proper. A. Standard of Review and Applicable Law
A complaint about the denial of an instructed verdict is reviewed as an attack on the sufficiency of the evidence to sustain the conviction, and we will examine the evidence in the light most favorable to the judgment. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993). The burden of objecting to the prosecution's failure to prove venue is on the defendant. Vasquez v. State, 491 S.W.2d 173, 175 (Tex.Crim.App. 1973); Mosley v. State, 643 S.W.2d 212, 215 (Tex.App.-Fort Worth 1982, no pet.). When the issue of venue is not raised in the trial court, it is presumed that proper venue was proved. Black v. State, 645 S.W.2d 789, 792 (Tex.Crim.App. 1983) (en banc); Clark v. State, 558 S.W.2d 887, 891 (Tex.Crim.App. 1977); Mosley, 643 S.W.2d at 215-16. A motion for instructed verdict, complaining that the State failed to prove the elements of the offense as set forth in the indictment, is insufficient to preserve the issue of venue. Grant v. State, 33 S.W.3d 875, 878 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Mosley, 643 S.W.2d at 216; Valdez v. State, 993 S.W.2d 346, 349 (Tex.App.-El Paso 1999, pet. ref'd); Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.-El Paso 1997, no pet.)). Venue is not considered an element of the offense; therefore, it may be proved by only a preponderance of the evidence. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. [Panel Op.] 1981). B. Application of Law to the Facts
At the close of the State's case in chief, appellant moved for a directed verdict. The trial court asked which specific element appellant was challenging. Defense counsel answered, "[t]hey have not proved that my client knowingly and intentionally penetrated the female sexual organ of [complainant] and have not proved that he knowingly and intentionally caused the touching of her breasts with intent to arouse or gratify himself." We conclude appellant failed to raise a proper venue challenge by this motion for directed verdict. Therefore, he cannot complain on appeal that the State failed to prove venue at trial. Furthermore, assuming arguendo that appellant did present the issue to the trial court, we conclude the evidence was sufficient to show venue was proper. The complainant testified that she "thought" the place of offense was in Dallas County. Additionally, a detective from the Farmer's Branch Police Department testified that the complainant lived in Dallas County, where the alleged assault occurred. There was no conflicting testimony as to venue. Appellant's second issue is without merit, and we accordingly resolve it against him. Legal and Factual Sufficiency of the Evidence In his third issue, appellant argues the evidence was legally insufficient in the indecency with a child charge to prove that he engaged in sexual contact with the complainant by using his hand. In his fourth and fifth issues, appellant argues the evidence was factually and legally insufficient in the indecency with a child charge to prove that he acted with the required mental state: intent to arouse or gratify one's sexual desire. In his sixth and seventh issues, appellant argues the evidence was factually and legally insufficient as to the aggravated sexual assault charge to prove beyond a reasonable doubt that his sexual organ contacted or penetrated complainant's sexual organ. A. Standard of Review
1. Legal Sufficiency Appellate review of legal sufficiency is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In reviewing the sufficiency of the evidence, we consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); see also Johnson v. State, 967 S.W.2d 410, 411-12 (Tex.Crim.App. 1998). The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). 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) (en banc); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). 2. Factual Sufficiency
When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996) (en banc). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimony. Id. at 8. We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997) (en banc). B. Applicable Law
A person commits the offense of indecency with a child when one engages in "sexual contact" with a child younger than seventeen years old or causes a child younger than seventeen years old "to engage in sexual contact." Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon Supp. 2002). The Texas Penal Code defines "sexual contact" as "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" if committed with the intent to "arouse or gratify the sexual desire" of the person. Id. § 21.11(c)(1). The requisite specific intent can be inferred from the defendant's conduct, his remarks, and all surrounding circumstances. Santos v. State, 961 S.W.2d 304, 308 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981)). An oral expression of intent is not required, and a defendant's conduct alone is sufficient to infer intent. Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.-Fort Worth 1999, pet. ref'd). A person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child younger than fourteen years of age to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon Supp. 2002). In aggravated sexual assault cases, the testimony of a child victim alone is sufficient to support a conviction. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2002); Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.). The child may testify using language appropriate for his/her age to describe the sexual assault because one "cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults." Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim. App. 1990) (en banc). Furthermore, a child victim's outcry statement alone can be sufficient to support a conviction for aggravated sexual assault. Kimberlin v. State, 877 S.W.2d 828, 831 (Tex.App.-Fort Worth 1994, pet. ref'd) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App. 1991) (en banc)). C. Application of Law to the Facts
1. Use of Appellant's Hand In his third issue, appellant argues the evidence was legally insufficient in the indecency with a child charge to prove that he engaged in sexual contact with the complainant by using his "hand." Complainant testified that appellant touched her "chest" and "private" with his "hand." Complainant later testified that once appellant walked in while she was taking a shower and "touched [her] chest" and then walked out. She then explained that by her "chest" she was referring to her breasts. Defense counsel offered into evidence complainant's affidavit, which states that "[h]e first touched my breast." While appellant maintains that complainant is lying, the fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones, 944 S.W.2d at 647. After viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant used his hand to touch complainant's breasts. Accordingly, we resolve appellant's third issue against him. 2. Requisite Mens Rea for Indecency With a Child In his fourth and fifth issues, appellant challenges the legal and factual sufficiency of the evidence in his indecency with a child conviction to prove that he acted "with intent to arouse or gratify his sexual desire." The requisite specific intent can be inferred from all surrounding circumstances. Santos, 961 S.W.2d at 308. The jury was free to infer intent from complainant's testimony regarding how appellant touched her breasts while she was in the shower. For his legal sufficiency argument, appellant points to complainant's failure to remember whether appellant had ever come into the bathroom while she was showering before and whether appellant had ever had sex with her before the shower incident. For his factual sufficiency argument, appellant points to complainant's poor reputation for truthfulness, the fact that she made her outcry shortly after appellant and her mother discovered the "slam book," and that complainant admitted she wanted to go live with her natural father. Appellant further argues his own affidavit and testimony proves that he never touched complainant inappropriately. These are all either attacks on complainant's credibility or attempts to bolster appellant's credibility. The jury, however, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones, 944 S.W.2d at 647. As to legal sufficiency, viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant acted with intent to arouse or gratify his sexual desire. Also, as to factual sufficiency, we conclude the evidence is not so weak that the jury's verdict was clearly wrong and unjust, nor is the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we resolve appellant's fourth and fifth issues against him. 3. Sexual Contact or Penetration for Aggravated Sexual Assault
In his sixth and seventh issues, appellant argues the evidence was factually and legally insufficient in the aggravated sexual assault charge to prove beyond a reasonable doubt that his sexual organ contacted or penetrated complainant's sexual organ. Complainant testified appellant would sometimes have intercourse with her, always with her on the "bottom" and appellant "on top." She testified that appellant would remove her panties and "just have sex with [her]." Complainant also testified that appellant would "like usually come inside of [her]." Complainant's testimony alone is sufficient to support appellant's conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a); Empty, 972 S.W.2d at 196; Karnes, 873 S.W.2d at 96. Additionally, defense counsel introduced complainant's affidavit, which states appellant "pulled his organ out and then took off my clothes. . . .[h]e first touched my breast then he started to put his organ into me." Finally, appellant testified that she had noticed a bump on the left side of appellant's penis; photographs admitted into evidence showed appellant did have such a bump. Appellant argues complainant never clarified what she meant by "intercourse." Appellant contends the evidence is insufficient because "mere contact with the outside of an object does not amount to penetration." Appellant also argues the verdict is contrary to the overwhelming weight of the evidence and is clearly wrong and unjust because: (1) complainant admitted to having a reputation as a liar; (2) the outcry took place the day complainant would have been punished for having the "slam book;" (3) complainant admitted she wanted to live with her biological father; (4) defense counsel exposed "numerous contradictions" in complainant's testimony; and (5) appellant told the jury complainant was lying. Lastly, appellant asserts there was no aggravated sexual assault because there was no medical evidence presented to support complainant's claim. First, complainant's use of the word "intercourse" clearly referred to sexual "contact" and "penetration" as required by article 22.021 of the penal code. Second, while mere contact with the outside of an object may not amount to penetration, the State only needed to prove either contact or penetration. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (en banc) (where alternate theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted). Third, appellant's reasons regarding why the verdict is contrary to the overwhelming weight of the evidence are all either attacks on complainant's credibility or attempts to bolster appellant's credibility. However, as we have already stated, the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones, 944 S.W.2d at 647. Finally, medical evidence is not required to prove penetration. See Villalon, 791 S.W.2d at 133 (State may prove penetration under article 22.021 by circumstantial evidence). As to legal sufficiency, viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the sexual organ of complainant, a child younger than fourteen years of age, to contact his sexual organ. Also, as to factual sufficiency, we conclude the evidence is not so weak that the jury's verdict was clearly wrong and unjust, nor is the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we resolve appellant's sixth and seventh issues against him. Ineffective Assistance of Counsel In his eighth and ninth issues, appellant argues he received ineffective assistance of counsel at both the guilt-innocence and punishment phases of his trial. A. Standard of Review and Applicable Law
To prevail on an ineffective assistance of counsel claim, appellant must show: (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that a different outcome would have resulted but for counsel's error. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc) (citing Strickland v. Washington, 466 U.S. 668 (1984)). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Moffatt v. State, 930 S.W.2d 823, 826 (Tex.App.-Corpus Christi 1996, no pet.). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim. App. 1999). There is a strong presumption that counsel provided reasonable assistance. Id. In most instances, a silent record that provides no explanation for counsel's actions or inactions will not overcome the strong presumption of reasonable assistance. Id. at 814. We do not judge trial counsel's performance with the benefit of hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992) (en banc). B. Application of Law to the Facts
In his eighth issue, appellant argues his attorney rendered ineffective assistance of counsel during the guilt-innocence phase of trial by: (1) failing to object to a CPS officer's classification of complainant's allegations as "reason to believe;" (2) failing to object to an examining psychologist's statements regarding appellant's performance on a personality test; (3) failing to object to "personal opinion" statements by the prosecutor; and (4) failing to argue as a defense that there was no medical evidence in support of the allegation. Appellant contends the "totality of these various errors had a synergistic effect and resulted in counsel's performance at trial being constitutionally deficient." In his ninth issue, appellant argues his attorney rendered ineffective assistance of counsel during the punishment phase of trial by: (1) failing to object to improper jury argument that had the effect of "plac[ing] the prosecutor in the position of unsworn witness directly rebutting the Appellant's testimony and credibility based on [the prosecutor's] own personal experience;" and (2) failing to object to the testimony of the chief probation officer and former supervisor of the Dallas County Sex Offender Supervision Unit, who stated that his experience with the way the county handled its sex offenders was "X-Files . . . trust no one." Appellant asserts the "cumulative effect and gravity of counsel's errors is sufficient to undermine confidence in the outcome of the prosecution." We conclude that appellant has not made an adequate showing that his counsel's representation fell below an objective standard of reasonableness. Appellant's allegations of ineffective assistance are not "firmly founded" in the record, nor does appellant demonstrate what objections, if made, would have resulted in effective assistance. In light of the strong presumption that counsel provided reasonable assistance, appellant fails the first part of the Strickland test. Furthermore, even if counsel's errors fell below an objective standard of reasonableness, in light of the other evidence against appellant, no reasonable probability exists that a different outcome would have resulted but for defense counsel's error. Accordingly, we resolve appellant's eighth and ninth issues against him. We affirm the trial court's judgments.