Opinion
No. 05-03-01058-CR
Opinion issued March 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-53637-JH. Affirmed.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
OPINION
Jerome Johnson appeals his conviction for sexual assault. After finding appellant guilty, the jury assessed punishment at forty-two years' confinement and a $7500 fine. In five points of error, appellant contends the trial judge erred in overruling his motions for mistrial and his objections to the State's use of peremptory challenges and that the evidence is legally and factually insufficient to support his conviction for sexual assault. We affirm the trial court's judgment.
Sufficiency of the Evidence
In his fourth and fifth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction because the complainant's testimony "was simply unbelievable." We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 2005 WL 600310, at *6 (Tex.Crim.App. Mar. 16, 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), petition for cert. filed, Dec. 20, 2004, No. 04-7807; Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits the offense of sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of another person by any means without that person's consent or causes the penetration of the mouth of another person by the sexual organ of the actor without that person's consent. Tex. Pen. Code Ann. § 22.011(a)(1)(A), (B) (Vernon 2004-05). Testimony of a sexual assault victim is alone sufficient to prove an assault. 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.); see Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978). Although appellant claims the evidence is legally and factually insufficient to support his conviction, we cannot agree. At trial, Cora Price testified she had previously dated appellant and that they were "dating off and on" but not seriously at the time. On June 13, 2001, appellant called Price and asked her to pick him up from work because his car was in the shop. Price complied and drove appellant to his apartment complex. Upon appellant's request, Price went inside his apartment and sat on the arm of the couch. Appellant asked Price if he could use her car. When she told him he could not, appellant hit her on the side of the face with enough force to knock her off the couch. He continued hitting her and began kicking her as she lay on the floor. He then dragged her to his bedroom by her hair, pulling out Price's hair weaves. In the bedroom, appellant threw her on the bed, hit her several more times, then pulled her clothes off. According to Price, appellant then forced her to have sex, penetrating her vaginally and orally. During the assault, he told her she "better not tell anybody" and that he was going to kill her. When appellant later fell asleep, Price wrapped herself in a towel. After locating her car keys, she left the apartment and drove to a nearby 7-11 store where she called the police. She was transported to the hospital and treated for her injuries. Price testified she did not consent to having sex with appellant nor did she consent to perform oral sex on him. She also testified appellant hurt her when he kicked, hit, and dragged her. She gave a statement to the police in which she stated appellant raped her and forced her to perform oral sex on him. Price could not write the statement or read it because her eyes were so swollen from her injuries. Price conceded she wrote appellant letters and sent him money while he was in jail and that she signed an affidavit of nonprosecution but testified she did so because she was afraid he would get out and "get" her. Several officers testified they responded to Price's call. Officer David Stephens testified Price told him appellant hit and kicked her, then dragged her to the bedroom where he sexually assaulted her. According to Officer Stephens, Price was highly agitated, upset, crying, and in a good deal of pain from her injuries. The officer went to the apartment and discovered the hair weave appellant had pulled from Price's head, her torn shirt and bra, and her pants and underpants turned inside out on the floor. Officer James Browder similarly testified about the location and state of Price's clothes and hair weave. Officer Browder was completing the book-in sheet to transport appellant to jail, when appellant said, "I don't know why you're coming in my house, all I did was assault her." In short, the evidence most favorable to the judgment shows appellant hit, kicked, and dragged Price into his bedroom where he forced her to have sex with him. Price signed a statement asserting appellant beat her, vaginally raped her, and forced her to have oral sex with him. Price testified she did not consent to having sex with appellant that day. After viewing this evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for sexual assault. We overrule appellant's fourth point of error. We reach a similar conclusion with respect to appellant's fifth point in which he claims the evidence is factually insufficient. Appellant again claims Price's testimony was simply unbelievable and that no rational juror could have believed it. The jury was the factfinder in this case and, as such, was entitled to believe or disbelieve each witness's testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding guilt beyond a reasonable doubt. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's fifth point of error.Motions for Mistrial
In his first and second points, appellant contends the trial judge abused her discretion in denying his motions for mistrial. Under both points, appellant claims the State's witnesses' comments about an extraneous offense inflamed the minds of the jurors and could not be cured by the instructions to disregard. We disagree. We review a trial judge's denial of a motion for mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 124 S. Ct. 2837 (2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 841 (Tex.App.-Dallas 2002, pet. ref'd). Mistrial is appropriate for "highly prejudicial and incurable errors" only. Simpson, 119 S.W.3d at 272 (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). In the first instance, the prosecutor asked Officer Stephens to detail the evidence he discovered at appellant's apartment that corroborated Price's statement. Officer Stephens replied he found torn clothing, the hair weave, and a "bowl of marijuana on the living room table." In the second instance, defense counsel was questioning Officer Browder about what he thought appellant's frame of mind was at the time of the assault. The officer replied, "I have no idea. I mean, he had been smoking marijuana that night, because we found a big plate on the coffee table." In both instances, defense counsel objected to the statements. After the judge sustained the objections, counsel requested and received instructions to the jury to disregard. Thereafter, he moved for mistrials which were denied. Although appellant now assigns these rulings as error, we cannot agree. When a trial judge instructs the jury to disregard an improper comment or question, we presume the jury will follow the judge's instruction unless the remark or comment was so prejudicial or extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). In each instance, the judge promptly instructed the jury to disregard the comment. The statements themselves were not so inflammatory as to prejudice the jury beyond repair. The prosecutor did not pursue the topic, nor was it mentioned again during trial or closing argument. Under these circumstances, we conclude the trial judge's instructions to disregard cured any prejudicial effect the comments otherwise would have had. In light of this, we cannot conclude the trial judge abused her discretion in denying appellant's motions for mistrial. We overrule appellant's first and second points of error.Batson Challenge
See Batson v. Kentucky, 476 U.S. 79 (1986).
a prima facie case that a venireperson was excluded on the basis of race. Then, the prosecution must come forth with race-neutral reasons for exercising the peremptory challenge. The defendant has the opportunity to rebut those reasons. The burden of persuasion remains with the defendant. Finally, the judge rules on whether the neutral reasons given for the peremptory challenge were contrived to conceal racially discriminatory intent.Jasper, 61 S.W.3d at 421. In reviewing the explanation given by the State for striking a potential juror, we look at the facial validity of the explanation. See Purkett v. Elem, 514 U.S. 765, 768 (1995). Striking a potential juror because he (i) hesitates, vacillates, equivocates, or is indecisive in answering or (ii) has relatives who have criminal records or have otherwise been "in trouble with the law" is a race neutral reason for exercising a peremptory strike. See Ladd, 3 S.W.3d at 563 (holding State had legitimate and racially neutral reason for striking potential juror because she vacillated in opinion and had relative facing drug prosecution); Wheatfall v. State, 882 S.W.2d 829, 836 (Tex.Crim.App. 1994) (holding prosecutor had sufficient and racially neutral reason to exercise peremptory on potential juror who vacillated in answers); cf. Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App. 1993) (State gave race-neutral explanation in striking venire person because her brother was convicted felon and she vacillated on death penalty). The prosecutor stated he struck Mr. Hubbard because when asked what kind of job the police were doing in his neighborhood, he "was very indecisive," "[h]e just didn't know, couldn't make a decision on that." Mr. Hubbard was also indecisive about how his brother, who had been charged with driving while intoxicated, had been treated. Appellant did not offer any argument or evidence to rebut the State's explanation or show the explanation was merely a sham or pretext. Rather, he argued that the reasons were pretext and the prosecutor really struck Mr. Hubbard because he was African-American. The judge ruled the prosecutor's reasons were racially neutral and overruled appellant's objection. Examining the record in the light most favorable to the trial judge's ruling, we conclude the State articulated race neutral reasons for striking Mr. Harmon. The prosecutor's explanations did not reflect an inherently discriminatory intent. And appellant, who disagreed with the State's reasoning, did not attempt to rebut the State's reasons by offering evidence or questioning the prosecutor about his reasoning. Because the trial judge's finding that the prosecutor's explanations were race-neutral is supported by the record, we cannot conclude the trial judge erred. See Simpson, 119 S.W.3d at 268. We overrule appellant's third point of error. We affirm the trial court's judgment.