No. 10-02-136-CR
Opinion delivered and filed December 31, 2003. DO NOT PUBLISH.
Appeal from the 87th District Court Freestone County, Texas, Trial Court # 01-182-Cr. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Judge STROTHER (Sitting by Assignment).
Ralph T. Strother, Judge of the 19th District Court of McLennan County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (Vernon Supp. 2004).
TOM GRAY, Chief Justice.
Preston James Miller was charged with aggravated sexual assault. The victim was his daughter. A jury found Miller guilty and the trial court assessed his punishment at 25 years in prison. Miller brings two issues on appeal. We affirm.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Miller argues that the evidence was both legally and factually insufficient to support his conviction. Specifically, he contends that the victim's sexual promiscuity and lack of veracity established a reasonable doubt that Miller committed the offense. He also contends that the victim's questionable testimony and the ongoing custody battle between grandparents and parents makes the verdict manifestly unjust. LEGAL SUFFICIENCY — LAW
A "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000)). Instead, a legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). EVIDENCE
K.L. and her siblings had lived with their grandparents for five years. When she was 8 years old, she and her siblings moved in with their parents, Christine and Preston Miller. Preston had not developed a parent-child relationship with K.L. prior to this time. K.L. testified that about a month after she moved in with her parents, Preston began to sexually abuse her. K.L. stated that the assaults occurred when she was left alone with Preston. K.L. testified that she was left alone with Preston whenever her parents fought. K.L. further stated that her parents fought frequently. K.L. stated that, at first, Preston made her touch his penis. He then would touch her, inside her clothing, on her breasts and vagina. K.L. stated that Preston would pinch her vagina and would insert his finger into her vagina. K.L. further testified that, after a month of this activity, Preston started forcing her to have sex with him, that is, he would "stick his penis inside" K.L.'s vagina. K.L. also stated that Preston would have a neighborhood boy, Eldon Ransom, come over and would force K.L. to have sex with the boy. K.L. said that Preston threatened to shoot her with a silver pistol which Preston kept in his closet if she did not have sex with Eldon. K.L. testified that Preston also tied her down with rope and burned her vagina with cigarettes. K.L. said she did not tell what was happening to her because she was afraid of Preston. She commented, however, that she told her mother, but that her mother did not believe her. K.L. testified that she decided to tell about what Preston was doing when her grandmother told her she would not have to go back to live with Preston or her mother. Dr. Michelle Berry examined K.L. and noted circular scars from her inner thighs to her labia and on her labia. Dr. Berry testified that she counted 17 such scars which appeared to be cigarette burns. She also testified that K.L. had abnormal and extensive scarring to her vaginal opening. Based on her experience, Dr. Berry testified that the scarring was a sign of forced penetration. APPLICATION
Miller wants this court to weigh the evidence cited above with evidence of K.L.'s promiscuity and lack of veracity when conducting a legal sufficiency review. This we cannot do. Based on the evidence viewed in the light most favorable to the verdict, the evidence is legally sufficient to support Miller's conviction. FACTUAL SUFFICIENCY — LAW
When reviewing a factual sufficiency challenge, we must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the fact finder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the fact finder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). EVIDENCE
In addition to the testimony previously discussed, the defense elicited testimony to cast doubt on K.L.'s veracity. K.L., her doctor, and her psychiatrist acknowledged that K.L. was not open about who had sexually assaulted her. K.L. initially said that a boy down the road, not remembering his name, had assaulted her. K.L.'s grandmother accused four people of the assault before K.L. admitted that Preston had been the perpetrator. K.L.'s mother, Christine, testified that she once caught K.L. and a boy named Coby fondling each other. An aunt testified that K.L. bragged that she had sex with Coby and had given a boy in her new school a "blow-job." Her mother and her aunt testified that they could not always believe what K.L. said. Testimony was also elicited that K.L. said she received the burn marks on her legs when the leaves she was raking at her grandparents' house caught fire and burned her legs and shorts. Further, witnesses testified that the grandparents never liked Preston and had been trying to again obtain custody of K.L. and her siblings. Eldon Ransom testified and denied ever having sex with K.L. Preston testified that he never spent a lot of time alone with any of his children. He denied that he and his wife had frequent fights and that she would leave K.L. alone with him. He also denied that he owned a gun. He contended that the only gun in the house belonged to a relative and that it was black, not silver as K.L. had described. Preston denied that he ever threatened K.L. or any of his children with a gun. Preston did not know of K.L's alleged promiscuity other than the encounter with Coby. He never saw any burn marks on K.L. He also testified that K.L. tended to exaggerate things. He denied that he had a rope of the kind that a person could be tied with. Preston testified that he thought he had a good relationship with K.L. Preston admitted that he had prior convictions for credit card abuse and theft by check. He stated that he was not informed when K.L. was born and that he was in jail when his wife gave custody of the children to her parents. He also stated that he did not have a parent-child relationship with K.L. or the other children until he and his wife regained custody. He admitted to hiding the children in Houston when it was time for the grandparents to exercise visitation. APPLICATION
In this case, additional evidence we must consider in conducting a factual sufficiency review, as opposed to a legal sufficiency review, is of two types. First is the evidence which tends to discredit or attack the credibility of K.L. The other is testimony of Preston in which he denies commission of the offense. After careful consideration, viewing all the evidence in a neutral light, the proof of guilt is not so weak as to undermine confidence in the jury's determination nor is it greatly outweighed by contrary proof. We find the evidence is factually sufficient to support the jury's verdict. Miller's first issue is overruled. MOTION FOR NEW TRIAL
In his second issue, Miller contends that the trial court erred in denying his motion for new trial based on newly discovered evidence. Miller filed a motion for new trial alleging that the verdict was contrary to the law and the evidence 29 days after his sentencing. He filed an amended motion for new trial alleging newly discovered evidence 42 days after sentencing. His issue for review is based solely on the amended motion. Miller's amended motion was untimely filed. See TEX. R. APP. P. 21.4(b). Thus, his amended motion for new trial is a nullity and its denial cannot form the basis for an issue on appeal. Webb v. State, 109 S.W.3d 580, 581 (Tex. App.-Fort Worth 2003, no pet.); Rangel v. State, 972 S.W.2d 827, 838 (Tex. App.-Corpus Christi 1998, pet. ref'd); Kiser v. State, 788 S.W.2d 909, 915-16 (Tex. App.-Dallas 1990, pet. ref'd). See also Moritz v. Preiss, 2003 Tex. LEXIS 77, * 13 (June 12, 2003). Miller's second issue is overruled. CONCLUSION
Having overruled each of Miller's issues on appeal, the judgment of the trial court is affirmed.