No. 05-04-01492-CR
Opinion Filed September 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-73810-PS. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
Opinion By Justice LANG.
A jury convicted Buford Lee Horn, Jr. of aggravated sexual assault of a child under fourteen years of age. During the punishment phase, appellant pleaded true to two enhancement paragraphs. The jury found the enhancement paragraphs true and assessed punishment at fifty-five years imprisonment. In a single issue, appellant contends the evidence is factually insufficient to support the jury's verdict. We affirm.
Background
J.H., who is appellant's daughter, testified that when she was in the sixth grade, appellant sexually assaulted her. During that time, J.H. visited her paternal grandparents often, and appellant also lived there. One night, J.H. and her step-brother D.H. were watching television with appellant. J.H. was sitting on appellant's lap and D.H. was in a chair next to appellant. The grandparents had already gone to bed. When D.H. fell asleep, appellant woke him and made him go to bed. After D.H.went to bed, appellant called J.H. into appellant's bedroom. When J.H. entered the room, appellant told her to lie down on the bed and take off her underwear. J.H. asked appellant, "What you [sic] doing this for?" Appellant said, "Just lay down and do what I tell you. I have to do this." J.H. took off her panties. J.H. testified appellant unzipped his shorts, took out his penis, put his penis in her vagina, and moved around. She tried to push appellant way, but did not scream or call out for anyone. After a short time, J.H. managed to push appellant off of her. Appellant ejaculated on J.H.'s leg. J.H. ran to the bathroom and stayed there until morning. Appellant had already left the house when J.H. came out of the bathroom. J.H. testified she did not tell anyone what appellant had done because she was shocked and did not know what to do. At some point, J.H. did tell her step-brother, who was a year younger than J.H. About one year after the sexual assault, J.H. told her mother. J.H. testified she did not remember the exact date of the sexual assault, but said it had happened in the fall of 2002, when she was in the sixth grade, and not during the spring or summer. She did not recall telling anyone the sexual assault had occurred after her birthday in April 2002. J.H. testified she remembered telling the police the sexual assault happened in the middle of the night or midnight. She finally told her mother about the sexual assault because everyone was complaining about her changed attitude and because her anger was getting worse. J.H. did not have any problems with appellant before the sexual assault. Although she acknowledged having problems in school, she testified she would never make up these type of allegations to avoid punishment. Sonja West, J.H.'s mother, testified she noticed changes in J.H.'s demeanor in March or April 2003, when J.H. was in the second-half of the sixth grade. West testified she got calls from school about J.H.'s behavior, J.H. talked back and was mean to her younger brother, and J.H. was fighting at school. According to West, she would punish J.H. by grounding her from activities and taking away things J.H. liked, such as the television and stereo. Although West and appellant were never married, J.H. had a good relationship with appellant and appellant's parents, and J.H. visited the grandparents often. West testified that on September 16, 2003, when J.H. was beginning the seventh grade, West was going to punish J.H. for fighting on the school bus and breaking a boy's nose. J.H. told West that she was having problems because of something appellant had done to her. J.H. said that while she was at the grandparents house a year ago, appellant told her to lie down on the bed and take off her underwear. Appellant then put his "thing" in her "area," and moved around. When appellant finally stopped, something "milky" came out of his "thing." J.H. ran to the bathroom and stayed there until morning. West testified she was shocked by J.H.'s allegations, but believed them. West called the grandfather and then called a friend before she notified the police. However, West testified she did not tell the police the sexual assault had occurred in April 2002. Detective Patricia Sanmartino testified she observed J.H.'s videotaped interview on October 2, 2003 at the Dallas Children's Advocacy Center (DCAC). Sanmartino said that if there are elements of an offense present after interviewing a child and parent, she will file a prosecution report. According to Sanmartino, the indictment in this case alleged an approximate date of the offense because children often remember events, not exact dates. Because J.H. stated the sexual assault had occurred sometime after her birthday, which was in April, Sanmartino chose the offense date of July 1, 2002 to reflect the mid-point in the year. Sanmartino testified that the reporting officer's report stated the alleged sexual assault occurred in March or April 2002, and that she did not know where the officer got that offense date. She testified authorities conduct forensic interviews with child victims of sexual assault to try to pinpoint when the offense occurred. Finally, Sanmartino testified that West, as the outcry witness, was interviewed, but she did not interview either J.H.'s step-brother or appellant's parents. Dr. Bane Smith, a family practitioner, testified he examined J.H. on September 18, 2003. Smith testified that West stated she had recently learned that J.H. had been raped by her father and, although the sexual assault happened the previous year, West wanted J.H. examined. Smith testified J.H.'s exam was normal, which neither confirmed nor ruled out sexual abuse. Dr. Dawn Johnson testified she observed the work of a nurse who examined J.H. at the Children's Medical Center. She stated the exam was normal, which neither confirmed nor ruled out sexual abuse, but added that it is possible for a girl to have sexual intercourse on one or more occasions and not show any signs of physical or sexual abuse. According to Johnson, the nurse's report stated the abuse happened one year ago and that J.H. last visited her father in April 2002. The last page of the report stated, "Last incident, April of 2002, one time only." Tracy Harmon testified she conducted a forensic interview with J.H. on October 2, 2003 at DCAC. The videotaped interview was played for the jury. Harmon testified J.H. was consistent throughout the interview and stated she did not tell anyone because she was afraid and thought she would get into trouble because she complied with appellant's demands. Harmon stated it was much easier for a child to consistently tell something that she actually experienced. Also, any inconsistencies in the date an event occurred may indicate a child is confused and not that the child forgot or made up the event. According to Harmon, children very rarely outcry immediately after something has happened to them; they usually wait for months after a traumatic event to tell anyone. Wanda Davenport testified she counseled J.H. for only two sessions in October 2003 at the Parkland Rape Crisis Center. During the first session, J.H. told Davenport that appellant had sexually assaulted her one year ago when she visited her grandparents house where appellant was living, and on another occasion appellant approached her but stopped when he heard someone coming into the house. Davenport was told by J.H. that appellant called her into his bedroom, told her to lie down on the bed and open her legs, then he tried to penetrate her. J.H. struggled and eventually got away. Then, J.H. ran to the bathroom and stayed there for several hours. When J.H. came back out, appellant was gone. Davenport testified almost ninety percent of children who have been sexually abused will delay telling anyone and will often act out. She believed J.H. had some emotional trauma, and acknowledged that at the time she saw J.H., Davenport knew J.H. was having problems with her mother, her school, and had been expelled from school twice for fighting. Davenport testified that J.H.'s records stated J.H. was getting into trouble at school, J.H. was afraid of the punishment she might receive, and J.H. decided to finally tell her mother about the sexual assault by appellant. West reported to Davenport that she saw changes in J.H.'s behavior for at least six months prior to October 2003, and that J.H. had increased her aggression, behavior problems at school, had a decrease in her appetite, and a distorted body image. Davenport testified that those symptoms are often indicators of childhood sexual trauma. Appellant's father and sister testified on his behalf. Buford Horn, Sr. testified he was the pastor of a church and appellant lived with him from sometime in June 2002 until after Christmas. During that time, J.H. visited on some weekends. Horn stated he asked J.H. about the allegations and why she did not tell anyone. J.H. told Horn that appellant "did it" and that she told her younger brother. Finally, Horn testified that church members viewed J.H. as being very truthful. Karnita Wolford testified that J.H. played with her daughters often, and Wolford did not notice any changes in J.H.'s behavior other than normal teenage changes. According to Wolford, during the third week in July 2002, the family took a trip to Memphis, Tennessee, including appellant and J.H. Wolford did not observe any tension or anger between J.H. and appellant. A stipulation of evidence was admitted in which appellant and the State stipulated that on January 24, 2001 appellant was incarcerated for possession of a controlled substance. Appellant was released from prison on June 19, 2002. Appellant did not testify at trial. Applicable Law
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). 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 under fourteen, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the contact or penetration of J.H.'s sexual organ, who was a child younger than fourteen years and not his spouse, by his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2004-05). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child. 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 factually insufficient because (1) he was incarcerated at the time of the alleged offense, (2) J.H. falsely accused him to escape punishment for bad behavior from her mother, (3) the police investigation was insufficient, and (4) the State's timeline regarding the alleged offense and consequences was inconsistent with the credible evidence. The State responds that the evidence is factually sufficient to support the jury's verdict of guilt because J.H.'s testimony was corroborated by that of several witnesses and established the elements of the offense. There was conflicting evidence presented about what date J.H. claimed was the offense date. Appellant argues he was incarcerated in April 2002 at the time of the alleged offense. Appellant was in prison from January 24, 2001 to June 19, 2002. The indictment alleged the offense occurred on or about July 1, 2002, which was after appellant was released from prison. J.H. denied she told the police or anyone else that the offense had occurred in April 2002. J.H. testified she could not remember the exact date when appellant sexually assaulted her, but it was after school had already started in 2002. West testified J.H. told her about the sexual assault on September 16, 2003, at the beginning of J.H.'s seventh grade school year, and J.H. stated the offense happened "a year ago." Johnson testified the nurse's report stated the offense had occurred in April 2002, and Detective Sanmartino testified the reporting officer's report stated the offense had occurred in April 2002. It was the jury's role 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). Appellant also argues J.H. falsely accused him in order to avoid being punished for her bad behavior. J.H. testified she would not make up allegations against appellant in order to get out of being punished for fighting on the school bus. West testified she believed J.H.'s allegations, and appellant's father testified that church members viewed J.H. as being a "very truthful" child. The jury was the sole judge of the weight and credibility of the witnesses and their testimony. See id. 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 standard, we conclude it is factually sufficient to support the conviction. See Zuniga, 144 S.W.3d at 484. We decide appellant's sole issue against him. The trial court's judgment is affirmed.