Nos. 05-10-00164-CR, 05-10-00165-CR, 05-10-00166-CR
Opinion Filed January 6, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F09-30463-L, F09-30466-L, F09-30539-L.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice LANG-MIERS.
Daniel Neal waived a jury and pleaded not guilty to three offenses: two aggravated sexual assaults and injury to an elderly person. After finding appellant guilty, the trial court assessed punishment at life imprisonment and a $10,000 fine in each case. In two issues, appellant contends the evidence is insufficient to sustain the convictions. We affirm the trial court's judgments.
Evidence Presented
B.S. testified that appellant sexually assaulted her in her home, poured alcohol on her head, and set her on fire. She testified that appellant came to her front door around noon one day and said he was selling magazines. She stepped out on the front porch and talked with him for several minutes. She told appellant she could not afford the magazines and he asked if he could use the bathroom. Because he was "neat and clean," had "papers" with his name and age on them, and said he had been out all morning without a chance to go to the bathroom, she let him in. When appellant came out of the bathroom, he said, "[I] have a pimple on my chin. Do you have any alcohol?" B.S. went into the kitchen and got a spray bottle containing rubbing alcohol and gave it to appellant. Suddenly, appellant "jumped" on her. She said he put his right knee against her "crotch," choked her neck with his left hand, and said "[Y]ou're going to suck my dick." Appellant put his penis in B.S.'s mouth. After awhile, appellant pulled her onto the floor, removed her pants, pulled up her shirt, and inserted his penis in her vagina. Appellant also sucked on B.S.'s left breast. When he could not "climax," appellant pulled his penis out of B.S.'s vagina and, while still laying on top of her, masturbated until he ejaculated. B.S. testified that after appellant ejaculated on her chest and vagina, he got up and went into the kitchen. While she was still on the floor trying to get her clothes on, appellant returned and poured something over her head. She realized the liquid was rubbing alcohol when it ran into her eyes. Appellant used a cigarette lighter to set her on fire. As B.S. rolled on the floor, she heard appellant leave through the front door. B.S. rolled back and forth on the carpet to put out the flames. After she extinguished the flames, she called her son and 911. B.S. testified she was in the hospital for two weeks recovering from burns to her right ear, right side of her neck, right shoulder and back, her stomach, and the right side of her chest. The doctors used skin from her left thigh for grafts. B.S. testified she did not give appellant permission to put his penis in her mouth or vagina. She said she was 78 years old at the time of the assault. B.S.'s son, David, testified that his mother called him around 1:00 p.m. that day and said, "[H]e tried to burn me up" and "Come here. You need to come get me." She sounded frantic. David arrived at B.S.'s house around 1:30 p.m. The front door was slightly open. When he entered the house, he saw his mother standing in the living room wearing only her underwear and clutching a "burned-up tank top to her torso." David could see that her hair was burned on the right side, and she had burn marks on the right side of her neck and right ear. She told David that she had been attacked, assaulted, and set on fire. David also testified that B.S. has had episodes of dementia in the past and has not been sure where she was. Grand Prairie police officer Brian Rinehart testified he arrived at B.S.'s house after paramedics were already on the scene. He saw burn marks on the carpet and burnt clothing-a pair of women's slacks and a blouse-on the floor. Rinehart also noticed burnt tissue on the clothing. Rinehart talked to B.S.'s son and interviewed B.S. in the ambulance. He saw that B.S.'s chest was red "up to her neck," her hair was singed on the right side, and her right ear was burned. B.S. told him what happened, described the suspect, and said the suspect's first name was "Daniel." She said Daniel went to the bathroom prior to assaulting her. Rinehart went back into the house and walked into the bathroom; the toilet seat was up. Because B.S. lived alone, Rinehart believed a man had raised the toilet seat. Dr. Barbara Hoffman testified that she examined B.S. at the hospital and B.S. told her what happened. She said B.S. appeared "calm, [and] clear thinking" during the entire exam. B.S. said the attacker penetrated her mouth and vagina with his penis and "bit her breast." B.S. said the attacker ejaculated on her face, chest, and vagina. Hoffman swabbed B.S.'s left breast, mouth, and vagina and testified B.S.'s injuries included a bite on the left breast, a bruise on her right wrist, and burned skin on the shoulder, neck, and torso. Dr. Gary Purdue, a burn specialist, treated B.S.'s injuries. Purdue testified B.S. had third-degree burns on about four percent of her body. Her burns were serious, required skin grafts, and would cause permanent scarring. Purdue testified he removed dead skin from the wounds and placed skin grafts from B.S.'s thigh on the wounds. Purdue operated on B.S.'s chin, neck, and abdomen. Detective Tracy Hinson testified he arrived at B.S.'s house after she had been transported to the hospital. In talking with Officer Rinehart at the scene, Hinson learned that B.S. had described her attacker as a "tall, skinny male, approximately six-four-ish, braided hair, going by the name of Daniel from Chicago, selling magazines and staying at the Raddison [sic] Hotel." Hinson testified there was a small spray bottle in the living room, but none of the officers found a large bottle of rubbing alcohol that B.S. said she used to fill the spray bottle. The next day, Hinson received a call that a magazine salesman was in the same Grand Prairie area. Hinson drove to the location and saw a salesman several blocks from B.S.'s house. He questioned the salesman and learned that a group of salespeople had been in the neighborhood the previous day going door-to-door and that one of them was named Daniel. Hinson spoke with their supervisor, who said there was an employee who fit the description. Hinson learned the location of Daniel and had him arrested. Hinson testified that he conducted a recorded interview with appellant the day after the assault. Appellant initially said he had been inside B.S.'s home the day before and left when she said she did not have any money and did not want to buy any magazines. Later in the interview, however, appellant said he asked to use the bathroom and went inside B.S.'s house. Appellant said that once he was inside the house, B.S. asked if she could see his penis. He said B.S. grabbed his belt, started unbuckling his pants, and said she wanted to perform oral sex on him. He said she offered to pay him to let her perform oral sex on him and that he had $24 from her. He said B.S. performed oral sex on him and asked him to put his penis in her vagina. He said he did, but he had problems keeping an erection, so he left. After Hinson told appellant that B.S. said he ejaculated, appellant said he may have "dripped on her." Appellant said that, afterwards, B.S. sprayed herself with "alcohol or something," and when he was lighting a marijuana cigarette, a spark from the cigarette "accidentally caught her on fire." Later in the interview, appellant said he lit the edges of napkins and threw them on B.S. intentionally. He ran from the house and went to a bar where he thought about going back to the house to set it on fire. Before trial, appellant stipulated to the DNA lab analysis introduced by the State. The State tested, among other things, oral swabs from B.S., a swab of B.S.'s left breast, and a piece of carpet from B.S.'s home. The report showed that spermatozoa containing a genetic marker that corresponded to a marker observed in appellant's DNA profile were found in the oral swabs, and spermatozoa matching appellant's DNA profile were found in the swab of B.S.'s left breast and from the sample of carpet. The report concluded that the probability of selecting at random an African-American individual unrelated to appellant with the same DNA profile as appellant was 1 in 1.03 quintillion for the swab of B.S.'s breast, 1 in 410 billion for the carpet sample, and 1 in 3 for the oral swabs. Appellant testified and admitted that he went to B.S.'s house around noon that day and talked to her about buying magazines. He testified that B.S. invited him into her home and told him to sit down in the living room. He said he stayed in the living room the entire time he was in the house and did not use the bathroom. He said they talked about the magazines and other things. B.S. gave appellant money to "put in my pocket, to go get something to eat." He asked if he could have something to drink, and B.S. gave him a soft drink. She offered him food, but he declined the offer. He said B.S. asked him about the size of his penis. Appellant showed her his penis, and B.S. said, "[C]ome here" and started "playing" with his penis. B.S. put appellant's penis in her mouth and started "jerking it in her mouth." Appellant said he did not put his hand on B.S.'s neck; he said he only put his hand on the top of her head while she performed oral sex on him. After his penis became erect, B.S. laid down on the floor and took off her clothes. Appellant admitted he pulled up B.S.'s shirt, but denied he had sexual intercourse with her. B.S. got up and left the room when appellant ejaculated on her chest. He stayed in the living room "rolling up my blunt." When B.S. returned to the living room, she had a "little spray bottle" with her. He asked if he could have a napkin, and B.S. sprayed a napkin using the spray bottle and gave it to appellant to "wipe himself off." As appellant was about to leave, he asked if he could "light up the blunt and walk out of the house." She said yes. When he lit the cigarette, the napkin caught on fire and he threw it. B.S.'s hair caught on fire. Appellant said he did not intend to throw the napkin at B.S. and never intended to hurt her. Appellant denied that he poured alcohol on B.S., and he insisted that the sexual activity between them was consensual. During cross-examination, appellant said he was "not in [his] right state of mind" when he "pulled [his] stuff out" because he had smoked a marijuana cigarette during lunch. He said he would never have gone inside B.S.'s house if she had told him she did not want the magazines. He said he had been selling magazines for two years and women sometimes invited him into their homes and asked him for sex. He said it "happens to me all the time" and he has had "similar encounters" in Kentucky, Boston, Cleveland, Bloomington, and Kansas City. Appellant testified he played with B.S.'s vagina with his right hand because "that's what she wanted." He also "nibbled" on her breast, but he did not bite her "that hard." Appellant said that after he ejaculated on B.S.'s chest, she left the room and he rolled another cigarette. When he accidentally ignited the napkin, he "flinged it" and B.S.'s hair accidentally caught on fire. He ran out of the house because he was "nervous." Appellant testified that his statements to Detective Hinson were different from his trial testimony because the police coerced him during the interview. Appellant said he is "slow," had been told he has problems "processing information," and did not understand that he was in trouble at the time he agreed to talk with the detective. Dr. Michael Pittman, a forensic and general psychiatrist, testified he examined appellant for competency to stand trial. Pittman said many people who may have a mental deficiency know right from wrong, but some of them may have difficulty processing information. Pittman testified appellant has a mental deficiency and estimated appellant's IQ to be about 65. Pittman testified appellant was competent to stand trial and was able to understand the severity of the crime and the legal proceedings against him. Pittman concluded that appellant did not meet the criteria for mental retardation. Applicable Law
In two issues, appellant challenges the factual sufficiency of the evidence to support the convictions. The Texas Court of Criminal Appeals has recently held that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895. We defer to the fact-finder's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"); Brooks, 323 S.W.3d at 894. To obtain convictions for aggravated sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the mouth and female sexual organ of another person without that person's consent, and the victim was an elderly person. See Tex. Penal Code Ann. § 22.021(a)(1)(A), (C) (West Supp. 2010). To obtain a conviction for injury to an elderly person, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused serious bodily injury to a person sixty-five years of age or older. See id. § 22.04(a)(1). Discussion
Appellant contends the evidence is insufficient to sustain the convictions because B.S. had a history of dementia and had episodes of being unable to tell exactly where she had been or what she had been doing. He also asserts that the evidence is insufficient because B.S.'s injuries were accidental and his testimony showed their sexual activity was consensual. The trial court heard B.S.'s testimony that appellant put his penis in her mouth and vagina without her consent. B.S. said appellant poured alcohol on her head and intentionally set her on fire. Dr. Purdue testified that the burns on B.S.'s chin, neck, and abdomen were third-degree burns that needed grafting and would cause permanent scarring. The trial court heard Hinson's testimony about his interview with appellant and how the details of the incident changed as the interview progressed. The trial court also heard appellant's testimony that the sex was consensual, that B.S. asked appellant to put his penis in her mouth and her vagina, and that he accidentally tossed the lit napkins on B.S. As the fact-finder in this case, it was the trial court's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial court was free to accept or reject any or all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). By its verdicts, the trial court reconciled the conflicts in favor of the State. And we must defer to the fact-finder's credibility and weight determinations. Brooks, 323 S.W.3d at 894. Viewing the evidence under the proper standard, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant caused the penetration of B.S.'s mouth and sexual organ by his sexual organ without her consent and that she was an elderly person at the time of the assault. We further conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused B.S., an elderly person, serious bodily injury by setting her on fire. Consequently, the evidence is sufficient to support the verdicts. See Brooks, 323 S.W.3d at 895. We overrule appellant's two issues. We affirm the trial court's judgments.