Opinion
No. 05-07-01107-CR
Opinion filed July 22, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-61826-VP.
Before Justices MOSELEY, FRANCIS, and LANG.
MEMORANDUM OPINION
A jury convicted David Moss of the offense of sexual assault of a child. A punishment hearing was conducted, and Moss pleaded true to two enhancement paragraphs. Evidence and testimony were presented, and the trial court found the enhancement allegations true and assessed punishment at life confinement. In three points of error, Moss appeals, claiming the evidence was legally and factually insufficient to support his conviction, and the trial court erred in excluding certain evidence. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. See Tex. R. App. P. 47.1, 47.4. For the reasons set forth below, we affirm the trial court's judgment. In his first and second points of error, Moss asserts that the evidence is legally and factually insufficient to support his conviction. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (same); see also Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007) (factual sufficiency); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (same) cert. denied, 128 S. Ct. 87 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006) (same). Moss was indicted for the offense of sexual assault of J.T., a child, which allegedly occurred on June 29, 2005. Thus, the State was required to prove beyond a reasonable doubt that Moss intentionally or knowingly caused the penetration of the sexual organ of J.T., a child, by Moss's sexual organ. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2007). For purposes of this section, a child is a person younger than seventeen years at the time of the alleged offense and not the accused's spouse. Id. § 22.011(c)(1). A conviction under section 22.011 is supportable on the uncorroborated testimony of the victim if the victim was younger than eighteen years of age at the time of the alleged offense. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). The record contains evidence that J.T. lived with her mother ("Mother") and her stepfather, Moss, for about eight years. J.T. testified that Moss had sexual intercourse with her on numerous occasions; however, she could only remember the details of one incident on June 29, 2005. J.T. testified that she was home alone with Moss, lying on a living room couch watching television. Moss came into the room, stood up in front of her, pulled down her shorts and his own pants, and had sexual intercourse with her. Additionally, J.T. testified that Moss exposed himself to her and touched her in inappropriate ways "in her younger days." Also, in July 2005, J.T., then fifteen, revealed to Mother and other relatives that she was pregnant and that Moss was the father. J.T. gave birth to a full-term baby girl on January 2, 2006; thus, the child was conceived in approximately March 2005. DNA testing showed a greater than 99.99% chance that Moss was the father. Moss contends the evidence is legally and factually insufficient because the State failed to prove beyond a reasonable doubt that he possessed the requisite mens rea. Moss testified at trial that in March 2005, when he allegedly had intercourse with and impregnated J.T., he had a toothache and Mother gave him painkilling drugs. Moss claims these drugs caused him to black out. It is not clear from the record how long Moss was unconscious; however, he claims he did not remember anything that happened that day. Thus, he was in a state of unconsciousness and could not have intentionally or knowingly committed the alleged offense. However, Moss was charged with sexually assaulting J.T. in June, not March. Thus, Moss's defense would not negate his mens rea for the charged offense. Moreover, because J.T. was fifteen years old at the time of the alleged abuse, her uncorroborated testimony that Moss had sexual intercourse with her in June was sufficient to support the conviction. See id. Considering the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found Moss guilty of the elements of the offense, including the requisite mens rea of intentionally or knowingly, beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Further, after reviewing the evidence in a neutral light, we cannot say the evidence supporting the conviction is so obviously weak as to undermine confidence in the factfinder's determination or is greatly outweighed by contrary proof. See Garza, 213 S.W.3d 338 at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. We overrule Moss's first two points of error. In his third point of error, Moss contends the trial court erred in excluding certain evidence he sought to offer at trial. Specifically, during Moss's cross-examination of J.T., he questioned her as to whether Mother had access to various drugs and medications. The State objected on the ground of relevance, and a hearing was conducted outside the presence of the jury. J.T. testified that Mother had painkilling pills from a doctor and from her aunt and that Mother had given Moss "some ibuprofen or some hydrocodeine" when "his head hurt." The State objected on the ground of relevance, and the trial court sustained the objection. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable that it would be without the evidence. Tex. R. Evid. 401. Moss urges J.T.'s excluded testimony was relevant to prove whether Mother had given him painkilling drugs, thereby supporting his theory that he did not intentionally or knowingly have sexual intercourse with J.T. in March. Again, however, whether Moss had the requisite mens rea when he allegedly impregnated J.T. in March is of no consequence to the charge that he sexually assaulted J.T. in June. Discerning no abuse of discretion, we overrule Moss's third point of error. See Willover, 70 S.W.3d at 845; see also Tex. R. Evid. 401. We affirm the trial court's judgment.