Opinion
Nos. 05-03-00772-CR, 05-03-00773-CR
Opinion Filed October 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-00919-Un and F03-00920-UN. Affirmed.
Before MOSELEY, FITZGERALD, and FRANCIS.
OPINION
A jury convicted Johnny Jones of aggravated assault and aggravated sexual assault and assessed punishment at life in prison. In four points of error, appellant contends the evidence is legally and factually insufficient to support his convictions. We affirm. Clarence Brown and Mary Holy were friends; both were homeless. One afternoon during rush-hour traffic, Brown was in the area of Central Expressway and Mockingbird Lane when he was told that Holy was being attacked nearby. Brown walked over to the area of a gazebo and saw appellant in the bushes beating Holy. Brown called the police. Dallas police officer Elaina Perez said the police received a number of calls about the attack. As she arrived at the scene, she saw appellant "pop out of the bushes" with his pants down to his knees. Appellant pulled up his pants, and Perez told him to put up his hands and ordered him out of the bushes. As appellant was walking to Perez, he told her, "She said we could have sex." Perez looked over at the shrub area where appellant had been and noticed somebody lying face down, motionless, with her pants down to her knees. At first, Perez could not tell if the person was alive because she did not respond to any questions and was bleeding heavily from her head. After rolling her over on her back, the woman moaned, and the police called for an ambulance. The woman was identified as Mary Holy. Her head was bloodied, her face swollen, her buttocks bruised, and her shirt torn open. Holy was transported to Parkland Memorial Hospital. The police retrieved a bloody bottle at the scene; DNA showed the blood on the bottle was Holy's. Holy died of an unrelated illness prior to trial, and the State relied on statements she made to the police and a doctor. Senior Corporal Kristin Lapiano talked to Holy at the hospital. Holy told Lapiano that she walked up to appellant and two other men to ask for a light for her cigarette. Appellant punched her in the face, causing her to fall back onto the bushes. Holy told Lapiano appellant dragged her into the bushes, got on top of her, and began beating her in the face and body with a beer bottle. Holy said she could not scream for help because her jaw felt like it had been broken. Appellant tried to rip off her shirt and continued to hit her. Holy told Lapiano that appellant tried to get her to put his penis inside of her vagina, but she refused. Appellant then put his fingers inside her vagina and then eventually put his penis inside of her vagina. During the assault, appellant continued to punch her and hit her in the face. At Parkland, Holy was examined by Dr. Robert McCrea, an OB/GYN. McCrea testified that Holy reported she had been sexually assaulted. Holy had bruises on her face and breast. Her pelvic examination was normal, although Dr. McCrea testified that only twenty to twenty-five percent of all confirmed sexual assault victims have any evidence of visible trauma to the genital area. No sperm was discovered. Holy, who suffered a subdural hematoma, was hospitalized for five days. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault. In particular, appellant argues the State failed to present sufficient proof of the element of penetration. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light, and we 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. Ross, 133 S.W.3d at 620 (citing Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840786, *6 (Tex.Crim.App. Apr. 21, 2004). Proof of even the slightest penetration of the complainant's vagina is sufficient to sustain appellant's conviction. See Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App. 1972); Malone v. State, 935 S.W.2d 433, 439 (Tex.App.-Tyler 1996, no pet.). Appellant complains that the jury had to rely on hearsay testimony since Holy died before trial. Appellant did not object at trial to either the police officer's or the doctor's testimony regarding what Holy told them about the assault. Further, all evidence admitted at trial — whether properly or improperly admitted — is considered in reviewing the legal and factual sufficiency of the evidence. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999) (legal); Young v. State, 976 S.W.2d 771, 773 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (op. on motion for reh'g) (factual). So, regardless of whether the evidence is hearsay or not, we consider it in our review. Officer Lapiano testified that Holy told her at the hospital that appellant put his penis in her vagina without her consent as he beat her with a bottle. Dr. McCrea testified that Holy told him she was sexually assaulted, and the medical report showed that she answered "yes" when asked if the man's penis penetrated her vulva. In addition to Holy's statements, appellant made an admission of sorts. Upon being caught, appellant told the police, "She said we could have sex." A jury certainly could infer from appellant's statement (coupled with the fact that his pants were down around his knees as were Holy's) that he had sex with Holy, although the jury was not bound to believe that it was consensual, particularly in light of the beating Holy sustained. Appellant also complains there is no medical or scientific evidence to support Holy's claim. While medical or scientific evidence may be preferable, it is not necessary for conviction nor is it usual. According to Dr. McCrea, only twenty to twenty-five percent of confirmed sexual assault cases have any evidence of visible trauma to the genital area. As Dr. McCrea explained, the fact there is no such evidence does not mean there was no sexual assault. Considering the evidence under the appropriate standards of review, we conclude the evidence is both legally and factually sufficient to establish the element of penetration. We overrule the first and second points of error. In the third and fourth points of error, appellant argues the evidence is legally and factually insufficient to support his aggravated assault conviction. As the aggravating element, the State alleged appellant used or exhibited a deadly weapon, a bottle. On appeal, appellant argues the State failed to prove he used a bottle in the attack. Holy told the police that appellant pulled her into the bushes, got on top of her, and beat her about the face and body with a bottle. Holy said that after appellant sexually assaulted her, he started to let her get up, changed his mind, and began beating her again with the bottle. Clarence Brown testified he saw appellant hitting Holy and called the police. When the police arrived, they ordered appellant out of the bushes and saw Holy motionless on the ground. She was bleeding from the head and had been beaten. Near where her head had been, the police found a bloody bottle. DNA testing showed the blood on the bottle matched that of Holy. The bottle was admitted as evidence. Officer Perez testified that the injuries she observed on Holy were consistent with someone who had been struck with a bottle. Similarly, Dr. McCrea testified that a glass bottle, such as the one admitted into evidence at trial, "certainly could" cause serious bodily injury or death. From this evidence, a rational jury could conclude, beyond a reasonable doubt, that appellant used the bottle during his attack on Holy. Moreover, this evidence is not so weak that the verdict is clearly wrong and manifestly unjust nor was there any contrary evidence that was so overwhelming that the standard of proof beyond a reasonable could not have been met. We overrule the third and fourth points of error. We affirm the trial court's judgments.