Opinion
No. 05-05-01139-CR
Opinion issued April 28, 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 DO NOT PUBLISH.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. F03-71261-FK. Affirmed.
Before Chief Justice THOMAS and Justices FITZGERALD and LAGARDE.
OPINION
James Robert Newman waived a jury and was tried before the trial court for attempted aggravated sexual assault of a child. See Tex. Pen. Code Ann. §§ 15.01(a), 22.021(a)(1)(B)(ii), (2)(B) (Vernon 2003 Supp. 2005). The trial court found appellant guilty and assessed punishment at five years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. In one point of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
The trial court actually heard two cases against appellant involving different complainants. The testimony in each case is contained in a common reporter's record. The trial court heard the two cases seriatum, i.e., testimony in the first case ended before testimony in the second case began. The trial court found appellant not guilty in the second case, and we did not consider that portion of the common record in this appeal.
Background
About 7:30 a.m. on October 31, 2002, the complainant Y.C., a thirteen-year-old middle school student, was walking to the bus stop to go to school. She was approached by a man, later identified as appellant, driving a car. Appellant pulled up beside Y.C. and asked if she wanted a ride to the bus stop. When Y.C. declined, appellant ordered her three times to get in the car. Y.C. was afraid, so she crossed the street and continued to walk to the bus stop. Appellant eventually drove away. Appellant neither touched Y.C. nor said anything to her except to order her into the car. A crossing guard, Charles Dupree, had noticed appellant's car earlier before it approached Y.C. He had seen the appellant's car pull into the parking lot and then saw it approach Y.C. Later, Y.C. told the crossing guard what had happened. The crossing guard called his supervisor and informed him of what had occurred. The next day, Dupree saw the same car in the same area. He made a note of the car's license plate number and later gave it to a police detective. On November 1, 2002, Dallas police officer Edward Villarreal was assigned to investigate a complaint about a "suspicious person near a school." Using Dupree's description and the license plate number, Villarreal identified the suspicious car and took a surveillance position in the same parking lot. Villarreal began watching appellant. He saw appellant drive back and forth beside a sidewalk where children between the ages of ten and thirteen were walking. Appellant eventually left the parking lot and drove to an apartment complex where there were also children passing by. Villarreal followed appellant and stopped appellant's car. Villarreal approached appellant, who was still seated in his car, identified himself, and told appellant he was investigating complaints about a suspicious man sitting in a parking lot. As he spoke with appellant, Villarreal noticed pornographic magazines, duct tape, and towels in appellant's car. Appellant told Villarreal he went to the parking lot to relax after getting off work. Also present during this conversation was another Dallas police detective, Vidal Olivares. Olivares asked appellant to follow him to the police station for further questioning. Appellant voluntarily went to Olivares's office, where Olivares questioned appellant about his October 31, 2002 encounter with Y.C. Appellant voluntarily waived his rights and admitted he had fantasies about having a sexual relationship or sexual contact with young girls. Appellant then gave a written statement, which was admitted into evidence without objection at trial. In his written statement, appellant admitted he saw Y.C. and thought she was between thirteen and fifteen years old. He asked Y.C. if she wanted a ride and where she wanted to go. Appellant stated he was going to ask Y.C. if she wanted to do a "blow job." If she said no, then he would say, "that's okay," and that would be it. Olivares testified that based on his investigation of the case, appellant at no time attempted to sexually assault Y.C. At the close of the State's case, the defense moved for a verdict of not guilty, then rested and closed without presenting any evidence. The trial court took the motion under advisement and proceeded to hear evidence in the second case. Defense counsel later argued to the trial court the State's proof was insufficient because it proved neither appellant's specific intent to commit aggravated sexual assault nor that appellant committed any act beyond mere preparation. Defense counsel argued appellant had admitted only that he had the specific intent to commit the offense of criminal solicitation of a minor, a different offense from aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 15.031 (Vernon 2003). Counsel argued there was no evidence appellant was going to force Y.C. to have sex. Rather, the evidence showed appellant intended to have sex only if Y.C. agreed. Therefore, appellant argued, the State had failed in its proof of specific intent to commit aggravated sexual assault. The trial court found appellant guilty.Standards of Review and Applicable Law
The State has the burden of proving all elements of the indictment beyond a reasonable doubt and courts of appeals have the power to review trial court verdicts in order to determine whether the burden has been met. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). The standards of review for legal and factual sufficiency of the evidence are well-established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The ultimate question in a factual sufficiency review is whether, considering all the evidence in a neutral light, a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (factual sufficiency review). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9. A person commits criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense. Tex. Pen. Code Ann. § 15.01(a). A person commits the offense of aggravated sexual assault if the person knowingly or intentionally causes the penetration of the mouth of a child by the sexual organ of the actor and the victim is younger than fourteen years of age. See id. § 22.021 (a)(1)(B)(ii), (2)(B).Analysis
Appellant does not argue the evidence is insufficient to prove his specific intent to commit aggravated sexual assault. He complains only that the evidence is legally and factually insufficient to prove his conduct went beyond mere preparation. The State first contends that nothing is presented for review because appellant presents his two complaints in a multifarious single point of error. The State further responds that the evidence is both legally and factually sufficient to support the conviction. A multifarious point is one that embraces more than one specific ground. See Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Although by combining more than one contention in a single point an appellant risks rejection on the ground that nothing is presented for review, see Luquis v. State, 72 S.W.3d 355, 369 n. 21 (Tex.Crim.App. 2002), an appellate court may address a multifarious point that is sufficiently developed in the brief. See Foster v. State, 101 S.W.3d 490, 499 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Therefore, we will address appellant's complaints. In relevant part, the indictment charged that on or about October 31, 2002, appellantdid unlawfully then and there, with specific intent to commit the offense of Aggravated Sexual Assault, do an act, to-wit: by intentionally and knowingly attempting to cause the contact and penetration of the mouth of [Y.C.], a child, hereinafter called complainant, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of the defendant and at the time of the offense said child was younger than 14 years of age, by the defendant following said complainant while said defendant was operating and driving a motor vehicle and by said defendant requesting and ordering said complainant to enter said motor vehicle occupied by said defendant; in the course of this same criminal episode, said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended[.]Under the indictment, the State was required to prove appellant had the specific intent to knowingly or intentionally cause the penetration Y.C.'s mouth by his sexual organ, that Y.C. was younger than fourteen years of age, and that appellant's conduct went beyond mere preparation that tended, but failed, to commit the offense intended. The State was not required to prove appellant had the specific intent to force Y.C. to engage in sexual conduct. Y.C. was thirteen years old. Appellant admitted in his statement he specifically intended to ask Y.C. if she wanted to do a "blow job" on him. The State's evidence was legally sufficient to prove appellant had the required specific intent to commit aggravated sexual assault. Consequently, the only issue we must decide in this appeal is whether the evidence proved that appellant committed an act beyond mere preparation that tended, but failed, to effect the commission of aggravated sexual assault. Appellant argues that because he never touched Y.C., never said anything sexual in nature to her, and never threatened or coerced her in any way, what occurred simply did not "tend to effect the commission" of aggravated sexual assault. The State responds that appellant's conduct amounted to more than mere preparation. It points to appellant's oral and written statements that he desired Y.C. to perform oral sex as establishing his intent to commit aggravated sexual assault of a child and to his conduct of parking his car near an area where many school children pass, as evidence of conduct beyond mere preparation. The State also points to evidence that appellant took substantial steps toward committing the offense by entreating, and even demanding, that Y.C. get into his car. This, argues the State, was the beginning of commission of the offense. It was Y.C.'s conduct, not appellant's, that halted the commission of the offense. The law of criminal attempt does not require that every act short of actual commission of the offense be accomplished. Santellan v. State, 939 S.W.2d 155, 163 (Tex.Crim.App. 1997). There is necessarily a gray area between conduct that is clearly no more than mere preparation and conduct that constitutes the last proximate act prior to actual commission of the offense. Come v. State, 82 S.W.3d 486, 489 (Tex.App.-Austin 2002, no pet.) (citing McCravy v. State, 642 S.W.2d 450, 460 (Tex.Crim.App. 1982) (op. on reh'g)). Whether conduct falling in that gray area amounts to more than mere preparation must be determined on a case-by-case basis. Id. (citing Gibbons v. State, 634 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.] 1982)); see also Flores v. State, 902 S.W.2d 618, 620 (Tex.App.-Austin 1995, pet. ref'd). There was no challenge to the indictment, and the facts are simple. The evidence shows appellant was engaged in a continuing scheme to lure young girls into his car. He tried to lure Y.C. into his car on October 31, 2002. After being unsuccessful in doing so, he returned the next day to the same place. Villarreal saw appellant drive to an apartment complex where other children were passing by. Upon approaching appellant's car, Villarreal saw pornographic magazines, duct tape, and towels in the car. Appellant admitted his specific intent to ask Y.C. to perform oral sex. All that remained for a completed aggravated sexual assault to have occurred was for Y.C. to agree to appellant's demands. See Come, 82 S.W.3d at 490. Under these circumstances, we conclude that when appellant drove to a place where children catch a school bus, stopped his car, approached the thirteen-year-old Y.C., and demanded three times that she get into his car, such conduct was more than mere preparation that tended, but failed, to effect the commission of the aggravated sexual assault intended. Thus, viewing the evidence in the light most favorable to the verdict, we conclude it is sufficient to allow a rational trier of fact to have found the essential elements of attempted aggravated sexual assault beyond a reasonable doubt. See id. The defense presented no evidence at trial, thus the evidence to be considered here is the same evidence considered in our legal sufficiency review. Having reviewed that evidence in a neutral light, we likewise conclude the evidence is factually sufficient to support the verdict. See Zuniga, 144 S.W.3d at 484. We overrule appellant's point of error and affirm the trial court's judgment.