Opinion
Nos. 14-08-00437- CR 14-08-00439-CR
Opinion filed July 21, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause Nos. 1096947 1096948.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
MEMORANDUM OPINION
Appellant Maximus Paul was convicted of two counts of aggravated sexual assault of a child and sentenced to forty-eight years' imprisonment. In his sole issue, appellant challenges the legal and factual sufficiency of the evidence. We affirm. Appellant is the complainant's maternal step-grandfather. The complainant's grandmother, Kornelia Stevenson, testified that in August of 2006 she was divorced from appellant and living in East Texas when her thirteen-year-old daughter Tabitha told her that something bad had happened to the complainant, who was staying with Stevenson at that time. Stevenson testified that the complainant, who was six years old at the time, then told her about an incident that occurred while she was visiting appellant six to eight months prior. According to Stevenson, the complainant told her that appellant took her to his bedroom and sexually assaulted her. Specifically, the complainant told her that appellant tried to put his finger in her vagina, tried to put his penis in her mouth, and placed his mouth on her vagina. The complainant also described to Stevenson how appellant tried to "enter her" with his penis and "rubbed over her and [] ejaculated on her." Stevenson reported the incident to the police and appellant was charged with two counts of aggravated sexual assault of a child. At trial, the complainant identified the vagina as a "private part" on an anatomically correct female doll and identified the penis as a "private part" on an anatomically correct male doll. She then testified that appellant touched her "private part" with his "private part," his hand, and his tongue. She testified that it hurt, that it felt gross, and that "gooey stuff" came out of appellant's "private part" while it was on her "private part." On cross-examination, the complainant again testified that appellant had placed his mouth on her "private parts," and that "gooey stuff came out" when he tried to place his "private part" into her "private part." Appellant denied sexually abusing the complainant. He testified that he divorced Stevenson primarily because she was spending everything they had and diverting funds. Appellant opined that after his divorce Stevenson and his step-daughter Natasha made the complainant accuse him to "destroy" him and because Natasha wanted to help Stevenson. The State alleged that appellant "intentionally and knowingly cause[d] the sexual organ of [the complainant], a person younger than fourteen years of age and not the spouse of [appellant], to contact the sexual organ of [appellant]" and with "intentionally and knowingly caus[ing] the sexual organ of [the complainant], a person younger than fourteen years of age and not the spouse of the defendant, to contact the mouth of [appellant]." See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (Vernon 2008). The jury convicted appellant of both charges and sentenced him to concurrent forty-eight-year prison sentences. This appeal followed. In his sole issue on appeal, appellant argues the evidence is legally and factually insufficient to sustain his conviction. Specifically, appellant argues that (1) Stevenson did not testify with sufficient particularity to prove the elements of the offense, and (2) the complainant was generally incredible and her testimony inculpating appellant was objectively unreliable, while appellant's testimony denying the allegations was reliable. In reviewing a legal sufficiency challenge, we view 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 a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The jury may also draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict, and we do not intrude upon the fact-finder's role as the sole judge of the weight and credibility of witness testimony. See id. at 417; Fuentes, 991 S.W.2d at 271. The fact-finder may choose to believe all, some, or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991); In re A.B., 133 S.W.3d 869, 872 (Tex.App.-Dallas 2004, no pet.). In our review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). If we determine the evidence is factually insufficient, we must explain in exactly what way we perceive the conflicting evidence to greatly preponderate against conviction. Watson, 204 S.W.3d at 414-17. Under Texas law, the uncorroborated testimony of a child victim, standing alone, is sufficient to support a conviction for aggravated sexual assault. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978); Lane v. State, 174 S.W.3d 376, 386 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Here, the child complainant's testimony that appellant put her on his bed and touched her "private part" with his "private part" and tongue was sufficient to sustain appellant's convictions for the charged offenses, given the evidence that the complainant understood the male "private part" to be the penis and the female "private part" to be the vagina. See Zuniga v. State, 811 S.W.2d 177, 179 (Tex.Crim.App. 1991) (stating that proof of contact between sexual organs of complainant and appellant is sufficient to sustain conviction for aggravated sexual assault of a child by contact); Villalon v. State, 791 S.W.2d 130, 133-34 (Tex.Crim.App. 1990) (recognizing that child victims cannot be expected to testify with the same clarity and ability as is expected of adults, and holding that child victim's use of anatomically correct dolls to demonstrate defendant's actions, along with her testimony that defendant was on top of her doing bad things "with the one he pees" and trying to "put it where [she] pee[s]" and where she does "number one," was sufficient to establish penetration element of aggravated sexual assault); Jensen v. State, 66 S.W.3d 528, 533-34 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (recognizing that testimony of child victim alone is sufficient to support a sexual assault conviction where child testified that the defendant "put his finger in [her] [inaudible] and make [sic] blood," stated that the defendant touched her in a way that hurt "by holding [her] private part" and touching it with his middle finger, and illustrated the touching by pointing to the private parts of a doll). The jury could have reasonably inferred that Stevenson's outcry testimony corroborated the complainant's testimony, though corroboration was unnecessary. Thus, even if we were to assume that Stevenson's testimony was insufficient to do so, because the complainant's testimony was independently sufficient to support appellant's conviction, we decline to sustain appellant's sole issue on the basis of this argument. Appellant's second argument challenges the complainant's credibility by asserting that:
(1) on cross-examination she admitted testifying that she was eight years old, despite being only seven, because the prosecutor had suggested as much;
(2) she initially could not remember whether appellant had done anything bad to her at his house, and her testimony inculpating appellant only came after the trial court granted the State a recess to allow her to watch a video of her forensic interview;
(3) Stevenson, whom appellant claims had a motive to ruin him, took her to the forensic interview;
(4) her testimony was inconsistent regarding whether she had previously seen the anatomically correct dolls;
(5) she could not remember any details of the incident, including whether the assault happened at morning or at night;
(6) she denied drawing on pictures of anatomical drawings, contradicting the testimony of forensic interviewer Amy Donahoe.However, the complainant's credibility is an issue within the sole province of the jury. Fuentes, 991 S.W.2d at 271; Sharp, 707 S.W.2d at 614. Moreover, the complainant remembered several details of the incident: that it occurred at the appellant's house, that it occurred in appellant's bed, and how appellant carried her to the room. Appellant also contends that the complainant's testimony was objectively unreliable because it (1) only came through the prosecutor's use of anatomically correct dolls, and (2) was predicated upon the complainant's explicit assumption that others were using the dolls to communicate to her what happened, and not that the dolls were for her use in communicating to others what happened to her. Both of these arguments are untenable. First, the complainant's testimony is no less inculpatory as a result of the State's use of anatomically correct dolls, and the complainant reiterated portions of the inculpatory testimony on cross-examination. See Villalon v. State, 791 S.W.2d 130, 134-35 (Tex.Crim.App. 1990) (finding the complainant's testimony using anatomically correct dolls sufficient to support conviction for aggravated sexual assault of a child). Second, rather than explicitly assuming that others were using the dolls to communicate to her what happened, the complainant merely agreed that the State showed her the dolls because "they wanted her to get what happened correct." We disagree with appellant's contention that this demonstrates the complainant assumed the dolls were being used to communicate to her what had happened or that as a result her testimony was objectively unreliable. Finally, appellant contends that while the complainant's testimony was incredible and objectively unreliable, his testimony denying the offense "showed no objective indicia of unreliability" and was the only evidence directly and reliably addressing the allegations. However, the jury was entitled to believe all, some, or none of the testimony presented and could have reasonably believed the complainant's inculpatory testimony while disbelieving appellant's exculpatory testimony. See Chambers, 805 S.W.2d at 461; Sharp, 707 S.W.2d at 614. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt. We therefore overrule appellant's legal sufficiency challenge. Based on the evidence before it, the jury chose to believe the complainant. Having neutrally reviewed the entire record, we hold that it contains no objective basis for saying that appellant's conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. We therefore overrule appellant's factual sufficiency challenge. Having determined that the evidence was legally and factually sufficient to support the jury's verdict, we overrule appellant's sole issue and affirm the trial court's judgment.