Opinion
No. 05-04-01402-CR
Opinion issued April 20, 2006. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F02-73959-NK. Affirmed.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
Billy Morris Kelly appeals his conviction for aggravated sexual assault of a child. After the jury found appellant guilty, it assessed punishment at nine years' confinement. In two issues, appellant contends we must reverse his conviction (1) because of improper jury argument, and (2) because the evidence is factually insufficient to support his conviction. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends we must reverse his conviction because of improper jury argument by the State. After reviewing the record, we cannot agree. In particular, appellant complains of the prosecutor's statement that she was "sorry that the children who were forced to live in that home everyday are here in this courtroom to hear this portion of the trial. In this prosecutor's opinion, that's not appropriate." Appellant objected "as to what [the] prosecutor thinks." On appeal, appellant additionally complains that the prosecutor's statement was not based on facts contained in the record and the prosecutor struck at appellant over the shoulder of his lawyer. Because these additional complaints do not comport with his objection at trial, we conclude appellant has failed to preserve them for our review. See Rezac v. State, 782 S.W.2d 869, 871 (Tex Crim. App. 1990). With respect to appellant's complaint of personal opinion, we likewise conclude, but for a different reason, that appellant has failed to preserve error for our review. Immediately after appellant objected to the complained-of statement and the trial court overruled the objection, the prosecutor continued "[t]o read the indictment in this case in front of a six-year-old is not appropriate, but that's the position that I feel right now." Appellant did not object. Thus, appellant failed to object each time the prosecutor stated her opinion that it was inappropriate for children to be in the courtroom. Consequently, appellant has failed to preserve this complaint for our review. See Haliburton v. State, 80 S.W.3d 309, 315 (Tex.App.-Fort Worth 2002, no pet.); Valdez v. State, 2 S.W.3d 518, 522 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Moreover, even assuming appellant preserved his complaint and the prosecutor's statement was improper, we would not conclude it affected appellant's substantial rights. We make that determination by balancing the following three factors: (1) the severity of the misconduct; (2) any curative measures; and (3) the certainty of conviction absent the misconduct. Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g). Considering these factors, the record shows that the complained-of statement was not a statement of opinion about a matter of consequence to the case but was an unnecessary comment about the propriety of allowing young children in the courtroom during closing argument. Further, nothing in the record indicates that appellant was responsible in any way for the presence of the children in the courtroom. Thus, any misconduct cannot be deemed severe. The trial court overruled appellant's objection, and there were no immediate curative actions taken. Finally, the certainty of conviction absent any misconduct was strong as K.R's testimony was unequivocal that appellant sexually assaulted her, and medical evidence supported her testimony. Balancing the applicable factors, we would not conclude appellant's substantial rights were affected. We overrule appellant's first issue. In his second issue, appellant contends the evidence is factually insufficient to support his conviction. In particular, appellant claims (1) K.R's testimony is not credible, (2) the medical evidence was not conclusive, (3) the State's evidence contained inconsistencies, and (4) the evidence "suggests" his innocence. When reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light and will reverse only if the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt, or if the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 483-84 (Tex.Crim.App. 2004). The jury is the sole judge of the credibility of the witnesses and we afford great deference to the jury's findings on that issue. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1997). To support appellant's conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly contacted or penetrated K.R.'s sexual organ with his sexual organ, and at the time of the offense, K.R. was younger than fourteen years old. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(A)(i) (a)(2)(B) (Vernon Supp. 2005). After reviewing the record under the applicable standard, we conclude the State met its burden. K.R., who was six-years-old at the time of trial, testified that she used to live with her mother and appellant. She did not like appellant because "he touched me places that he wasn't supposed to." He touched her "lots of times." According to K.R., appellant would take her clothes off and lay her on the bed. Then, he would take off his boxers and touch her on the inside of her "front part" with his "front part." When he did that he would "pee" on the bed and her front part. K.R. explained that she did not tell about appellant touching her because appellant told her if she did, K.R. would get in trouble. Once, K.R. told her mother, but she did not do anything about what K.R. had told her. This evidence alone is sufficient to support the jury's determination of guilt. See Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). In addition to K.R.'s testimony, the State presented evidence that K.R. told Cindy Alexander, the Clinical Director at the Dallas Children's Advocacy Center, about the sexual abuse. Alexander explained that she performs therapy at the Advocacy Center and she had several sessions with K.R. During their third session, Alexander used a technique called the "systematic touch interview." Alexander talked with K.R. about different types of touches, for example, "kissing, hugging, spanking, hitting, and touching where you go potty." When Alexander asked about touching where you go potty, K.R. said that had not happened and did not want to talk about it. Alexander explained to K.R. that sometimes adults "break the rules" about touching children and it was important for K.R. to tell Alexander if that had happened. K.R. then told Alexander that appellant put his hand in her middle part and that it hurt. Then he showed her movies about men putting their "hands and wienie" into middle parts, and then he "put his wienie into her middle part, moved it around, and then he peed in her." Matthew Cox, the Co-medical Director of the child abuse program at Children's Medical Center, testified he reviewed K.R.'s medical records. The records show K.R. was examined by Dr. Janet Squires, the former director of the child abuse program. Cox explained that such examinations are characterized on a continuum as normal, non-specific, concerning, or diagnostic. Squires noted K.R.'s exam was "concerning" because she had a brownish discharge and a "very large" bump or mound of tissue on the hymen. According to Cox, the extra tissue on K.R.'s hymen is consistent with vaginal penetration. K.R.'s mother testified that K.R. never told her that appellant was molesting K.R. The first she heard of the allegations was after Child Protective Services removed K.R. and her other children. K.R.'s mother did not believe it was appellant that molested K.R. According to K.R.'s mother, that was just something CPS "put in [K.R.'s] head." K.R.'s mother believed it was her father (K.R.'s maternal grandfather) who molested K.R. because he had raped K.R.'s mother when she was nineteen- or twenty-years-old. Appellant maintains this evidence is factually insufficient to support his conviction because (1) K.R's testimony is not credible, (2) the medical evidence was not conclusive, (3) the State's evidence contained inconsistencies, and (4) the evidence "suggests" his innocence. However, the jury was the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony and 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). It is clear from the jury's verdict that it found K.R. credible and did not find appellant's denial of the offense credible. We find no reason to disturb the jury's finding. After reviewing all of the evidence in a neutral light and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the jury was rationally justified in finding appellant committed aggravated sexual assault. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Further, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist in this case. Having reviewed all of the evidence under the proper standard, we conclude it is sufficient to support appellant's conviction. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.