Opinion
No. 05-07-01409-CR
Opinion issued September 12, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 054659-59.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Johnny Lee Marcum of sexual assault of a child. The trial court assessed punishment, enhanced by a prior conviction, at imprisonment for twenty years. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm. L.C., the complainant, testified appellant pressured her to have sex with him on more than one occasion in 2005, when L.C. was fourteen years old and appellant was twenty-seven. L.C. gave birth to appellant's daughter in January 2006, two months before her fifteenth birthday. L.C. has two older brothers, L.G. and G.G., and appellant was a friend of L.G. In early 2005, appellant began "hanging out" with L.G., visiting the house "three or four times a week." On or about April 15, 2005, L.C. went to a nearby park with G.G. to release a pet turtle into a pond. Appellant met them at the park and pressured L.C. to have sex with him. Eventually L.C. and appellant had sex in a wooded area of the park. L.C. said she was "scared what would happen" if she resisted, so she "went ahead and did it so I wouldn't get hurt or nothing like that." L.C. did not tell anyone about having sex with appellant until after she went to the doctor for a routine exam and found out she had a sexually transmitted disease and was pregnant. L.C. told appellant she was fourteen years old, and both her father and brothers had told appellant L.C.'s age. L.C. told the jury she never told anyone she was older than fourteen, and expressly denied telling appellant's brother-or sister-in-law that she was eighteen. G.G. is three years older than L.C. and attended special education classes in high school. G.G. testified that in 2005, appellant began coming to the house every day to see L.C. The second day appellant came over, G.G. told appellant L.C. was twelve years old. G.G. testified he saw appellant and L.C. "making out on the couch" on more than one occasion. In April 2005, G.G. went to the park with L.C. to release their pet turtle. Appellant "showed up and was pressuring L.C." about having sex with him. Appellant told L.C. to get on the ground and take her pants off. G.G. stood near the pond while appellant and L.C. were in a nearby wooded area. G.G. did not tell anyone about appellant having sex with L.C. because he was afraid appellant would "come back and beat me up and all of that." Appellant's brother and sister-in-law testified on his behalf. Shera Scott met L.C. when appellant brought L.C. to Scott's house to help him babysit Scott's children. When Scott asked L.C. how old she was, L.C. said she was eighteen. Mark Marcum asked L.C. how old she was "about 20, 30 times," and L.C. repeatedly said she was eighteen. Both Scott and Marcum believed L.C. was eighteen years of age until police officers came to their home looking for appellant. A detective told them L.C. was only fourteen years old. Appellant testified he had sex with L.C. because they were in a dating relationship and he believed she was eighteen years old. According to appellant, he did not begin "hanging out" with L.G. until May 2005, and then he met L.C. He did not realize L.C. was the same six-year-old child he had seen in L.G.'s house in 1997 when he first met L.G. When appellant began talking to L.C., she said she had "just turned" eighteen. Appellant was twenty-seven years old at that time. Appellant considered L.C. his girlfriend, and even asked L.C.'s mother for permission to date L.C. Her mother said appellant could date L.C. "as long as I didn't harm her in any way." Appellant testified he never forced L.C. to have sex with him, including the day they had sex in the park. In September 2005, appellant moved to Pennsylvania. At the time he left, he knew L.C. was pregnant, but still believed she was eighteen. While living in Pennsylvania, appellant found out from his brother that L.C. was underage. Appellant told the jury he would have never "messed with" L.C. had he known she was only fourteen years old because he does not "do that." In rebuttal, the State presented testimony from Ashley Malone. Malone, who was twenty-three years old at trial, started dating appellant when she was thirteen years old. At that time, appellant was eighteen and knew Malone's true age. Malone gave birth to appellant's daughter when Malone was thirteen years old. Shortly after the child's birth, appellant terminated his parental rights to the child so she could be placed for adoption. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for sexual assault of a child, the State was required to present evidence that showed appellant intentionally and knowingly caused the contact or penetration of the sexual organ of L.C., a child under the age of seventeen and not appellant's spouse, by appellant's sexual organ. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2008). Appellant argues the evidence is legally and factually insufficient because the State failed to prove he knew L.C. was under seventeen years of age. The State responds the evidence is legally and factually sufficient to support the jury's verdict and that knowledge of the complainant's age is not an element of the offense. We agree. The State was not required to prove appellant knew L.C. was under seventeen years of age. See Johnson v. State, 967 S.W.2d 848, 849 (Tex.Crim.App. 1998). Moreover, mistake of fact with respect to L.C.'s age is not a defense to sexual assault of a child. See Vasquez v. State, 622 S.W.2d 864, 865 (Tex.Crim.App. 1981). Viewing the evidence under the appropriate standards, we conclude the evidence presented to the jury is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We overrule appellant's two points of error. We affirm the trial court's judgment.