Opinion
No. 05-03-00582-CR.
Opinion Filed February 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-72191-V. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
A jury convicted Douglas Ernesto Ordonez of aggravated sexual assault of a child younger than fourteen years and assessed punishment at twenty years confinement. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We will affirm the trial court's judgment. Background C.R., the seven-year-old complainant, testified that when she was five years old, she was in the children's room at appellant's house when something bad happened. C.R. was staying with Doris Mendoza, appellant's common-law wife, because C.R.'s mother was in the hospital. C.R. testified she often played with appellant's daughter who was one year younger than C.R.C.R. testified that appellant had been taking care of her and his daughter because Mendoza was working and was not in the apartment. Appellant's two sons were outside playing. While appellant's daughter was in the kitchen eating, appellant said to C.R., "Let's go and play." C.R. said, "That's fine," and followed appellant to the children's bedroom. C.R. testified that it was daytime when she went into the bedroom to play with appellant. Appellant told C.R. to take off her underwear. Appellant then removed C.R.'s pants and underwear and removed his own pants and underwear. Appellant laid C.R. on the floor face-down and climbed on top of her. C.R. testified appellant put "his little penis in the middle of my tail," and that appellant's penis went inside her "tail" and she felt appellant "peepee" inside the "middle" where she goes "poopoo." C.R. testified she felt pain and told appellant to stop. Appellant got up and said, "Would you forgive me, would you forgive me." C.R. said, "Yes." C.R. got up and went to the bathroom to wipe herself off because her "tail was mushy like." After C.R. cleaned herself, she went out and resumed playing with appellant's daughter. C.R. testified she did not tell anyone about what appellant had done because she was ashamed. C.R. testified Mendoza did not take her to school that day because Mendoza did not know where C.R. went to school. C.R. testified she told her mother "after many months went by." Marta Reyes, C.R.'s mother, testified she met appellant and Mendoza in church. They became friends, socialized together, and C.R. played with appellant's daughter. Appellant also worked in Reyes's husband's wrecker business for about one year. Reyes testified that on March 15, 2000, she went to the hospital emergency room around noon because she was not feeling well. She was admitted at 7:17 p.m. that evening and stayed overnight. Mendoza offered to watch C.R. while Reyes was in hospital because C.R.'s father worked all day and into the night with his wrecker business. Reyes testified C.R. was with her when Mendoza drove Reyes to the hospital, but Reyes did not recall what time Mendoza left the hospital with C.R.C.R. was also with Mendoza when she picked up Reyes from the hospital the next day at 12:45 p.m. Reyes testified that when she came home from the hospital, C.R. appeared and behaved normally. Reyes and her husband continued to socialize with appellant and Mendoza until C.R. made her outcry. Reyes testified that in April 2002, while she was driving C.R. to the church, C.R. told Reyes that she wanted to tell her "something that Brother Douglas did to me," but she was ashamed to tell. C.R. referred to appellant as "Brother Douglas" because appellant was a "brother of the church." Reyes testified that after prodding C.R. to tell her what happened, C.R. stated the following: when Reyes was in the hospital and C.R. stayed with appellant and Mendoza, appellant told C.R. to go play in the bedroom, where he pulled down her pants, laid her on the floor on her stomach, and "got on top" of her. Reyes prodded C.R. to tell her everything that appellant did to her. C.R. stated appellant took off his underwear and put his penis into "where you poopoo," and then appellant "peepeed on me." C.R. said that when she got up, she went to the bathroom and cleaned herself. C.R. said Mendoza was at work and not at home, and, although "it hurt" when appellant put his penis in her "butt," she did not yell or scream because she was ashamed. Reyes testified she called her husband, who called the police. After a report was made to the police, Reyes and her husband had no more contact with appellant except to see him in church. Mendoza testified Reyes's husband called her and asked her to come over because his wife was not feeling well. When Mendoza arrived at Reyes' apartment, Reyes was lying in bed and appeared to be in pain. C.R. was at school. Mendoza drove Reyes to the hospital and waited with her. When it was time to pick up the children from school, Mendoza picked up C.R. and then picked up her own children, and drove back to the hospital. Mendoza testified it was already dark outside when she realized Reyes was going to be admitted to the hospital. Mendoza took C.R. home with her because C.R.'s father had the wrecker business and often got calls to go out at midnight. Mendoza testified she lived in a two-bedroom apartment with her two sons, her daughter, and appellant. The boys slept in one bedroom and her daughter had a bunk bed in Mendoza's and appellant's room. Mendoza testified that when she got home with the children at 9:00 p.m., appellant was already home. She fed the children, then the children played together for a while. Mendoza put all of the children to bed around ten or eleven o'clock. C.R. slept in the top bunk, and Mendoza's daughter slept on the bottom. The next morning, Mendoza got all of the children up, bathed them, and got them ready for school, including C.R. Mendoza did not notice anything wrong with C.R. or see any blood or feces in C.R.'s underwear. Mendoza testified she dressed C.R. in one of Mendoza's daughter's dresses because C.R. did not have a change of clothing. Mendoza took C.R. to school. Later that morning, Mendoza picked Reyes up from the hospital before the children got out of school. Carla Galaviz, Mendoza's oldest daughter, testified she saw C.R. the morning after C.R. stayed overnight with Mendoza, and C.R. appeared and acted normal. Appellant testified he was friends with the Reyes family and socialized with them a few times. Appellant testified he would often look after his children in the afternoon when his wife was not there, and he would play with all of the children, including C.R. On the day C.R. spent the night at his home, appellant had finished working his construction job about 3:30 p.m. or 4:30 p.m. Mendoza did not get home with the children until evening. They fed the children and let them play before going to bed. C.R. slept in the top bunk of his daughter's bed. Appellant testified he did not ask C.R. to go into the children's room to play a game, and he did not pull C.R.'s pants down and sexually assault her. Appellant testified Mendoza was at home the entire time C.R. stayed overnight, and he was never alone with C.R. at any time that day. Applicable Law In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates 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. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). A person commits aggravated sexual assault of a child under the age of fourteen if the person intentionally or knowingly causes the contact or penetration of a child's anus by any means. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2004). "Child" means a person younger than seventeen years of age who is not the spouse of the actor. See id. §§ 22.011(c)(1), 22.021(b)(1). Discussion Appellant argues the evidence is factually insufficient because 1) C.R. was not at his home until nine o'clock and was in bed asleep two hours later, 2) C.R. slept in a room with other children, 3) appellant was never alone with C.R., 4) there were no locks on the bedroom doors, and 5) C.R. acted normally the next morning. The State responds the evidence is factually sufficient to support appellant's conviction because the complainant gave consistent and detailed testimony that a sexual assault occurred, and the jury resolved conflicts in the evidence. We agree with the State. There was conflicting evidence presented in this case. Appellant essentially asks that we disbelieve the complainant and believe his testimony. However, it was the jury's role to resolve any conflicts in the witnesses' testimony, as the jury was the sole judge of the weight and credibility of the witnesses and their testimony. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim. App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex. App.-Dallas 1998, pet. ref'd). After reviewing all of the evidence, we conclude the proof of appellant's guilt is not so obviously weak that it undermines our confidence in the jury's findings of guilt, or that it is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.