Opinion
No. 10-04-00243-CR
Opinion delivered and filed August 3, 2005. DO NOT PUBLISH.
Appeal from the 221st District Court, Montgomery County, Texas, Trial Court No. 03-03-01800 Cr. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE concurring with note)
"(Justice Vance concurs. The perfunctory manner in which this opinion disposes of the issues does not assist the litigants, the higher courts, the Bench and Bar, or the public. There is essentially no analysis of the issues under the applicable standards — only conclusions. For example, issue three involved unauthorized contact with the jury. The parties' briefs present a viable issue. The appellant points to evidence of a conversation and the record of the motion for new trial. Two witnesses, including the prosecutor, testified about a conversation either in the doorway to the jury room or inside the room itself (their accounts differ). The State's brief discusses the issue at some length. Thus, this opinion does not demonstrate that we have given the issue our careful attention. I believe we should provide more of the facts and our analysis, even in memorandum opinions. Thus, I cannot join this opinion.)"
MEMORANDUM OPINION
Rice appeals his conviction for aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (Vernon Supp. 2004-2005). We affirm. Sufficiency of the Evidence. In Rice's first and second issues, he contends that the evidence was insufficient. Rice argues that the victim's mother had a motive to fabricate, and that he was unable to commit the charged offenses because of a medical condition. Although Rice attached medical records to his motion for new trial, he does not point to evidence of his medical condition which was before the jury. The State points primarily to the direct testimony of the victim. Legal Sufficiency. In Rice's second issue, he contends that the evidence was legally insufficient. Considering the record evidence in the light most favorable to the jury's verdict, we determine that a rational jury could have found Rice guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Prible v. State, No. AP-74,487, 2005 LEXIS Tex. Crim. App. 110, at *12-*13 (Tex.Crim.App. Jan. 26, 2005). We overrule Rice's second issue. Factual Sufficiency. In Rice's first issue, he contends that the evidence was factually insufficient. Viewing the evidence in a neutral light, we determine that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust, and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Prible, 2005 LEXIS Tex. Crim. App. 110, at *16; Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). We overrule Rice's first issue. Jury Conversation. In Rice's third issue, he contends that an unauthorized person conversed with the jury about the case. See TEX. CODE CRIM. PROC. ANN. art. 36.22 (Vernon 1981); TEX. R. APP. P. 21.3(f). We assume without deciding that Rice preserved the issue. See TEX. R. APP. P. 33.1(a). Rice does not point to any evidence of such conversation, and thus his issue presents nothing for review. See id. 38.1(h); McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex.Crim.App. 2001), cert. denied, 162 L.Ed. 2d 298 (2005). We overrule Rice's third issue. Motion for New Trial. In Rice's fourth issue, he contends that the trial court erred in overruling Rice's motion for new trial. Rice argues that the jury committed misconduct in considering punishment during the guilt-or-innocence stage of trial. See TEX. R. APP. P. 21.3(g). We assume without deciding that Rice's general motion for new trial preserves the issue. See id. 33.1(a). In response to a jury question about the range of punishment, the trial judge instructed the jury that he could not answer the question, and instructed the jury not to consider punishment matters. The trial court did not abuse its discretion. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). We overrule Rice's fourth issue. Having overruled Rice's issues, we affirm the judgment.