Opinion
No. 05-04-01853-CR
Opinion Filed at January 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-71521-VW. Affirm.
Before Justices O'NEILL, FITZGERALD, and LANG.
OPINION
Appellant appeals his conviction for aggravated sexual assault. After finding appellant guilty, the jury assessed punishment at forty years' confinement. In five issues, appellant generally contends (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred in excluding relevant evidence, (3) the trial court erred in failing to grant a mistrial when the prosecutor attempted to introduce inadmissible evidence, and (4) the trial court erred in overruling his objection to improper jury argument. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for sexually assaulting S.H. At trial, S.H., who was then nine-years-old, testified that one day when she was five-years-old, her sister left her at appellant's apartment. S.H. sat on appellant's couch and watched television. Shortly thereafter, appellant told S.H. to take her panties off. S.H. did as instructed. Appellant then put his "middle part" inside S.H.'s middle part. S.H. told the jury appellant's "middle part" was his penis. After appellant assaulted S.H., he took her home. S.H. did not initially tell anyone about the assault because she was afraid she would get a "whooping." She eventually told her older sister about the assault. S.H.'s sister A.N.J. was nineteen-years-old at the time of trial. She testified that when she was around thirteen- or fourteen-years-old, she would often go to appellant's apartment because he would allow her to skip school. She said she only left S.H. with appellant one time, which she believes was her fourteenth birthday. She said S.H. was four or five at that time. About a year later, S.H. told A.N.J. that appellant had sexually assaulted her, but A.N.J. did not report the offense. A couple of years after the assault, S.H. was taken into custody by CPS because she was left unattended at her apartment complex. S.H. told her CPS caseworker that appellant had sexually assaulted her. The child was given a forensic interview at the Child Advocacy Center. In her interview, S.H. detailed how appellant sexually assaulted her. In the first issue, appellant contends the evidence is legally insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). S.H. testified positively and unequivocally that appellant committed the offense as alleged. Appellant nevertheless contends the evidence is legally insufficient to support his conviction because S.H. was not credible. In determining the legal sufficiency of the evidence, we will not reevaluate the credibility of the witnesses. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). S.H.'s testimony alone is legally sufficient to support his conviction. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). We resolve the first issue against appellant. In the second issue, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. According to appellant, the evidence is factually insufficient because the record shows S.H. "falsely accused' him of sexual assault. Appellant relies on a discrepancy regarding how old S.H. was at the time of the offense. Specifically, the evidence presented showed both that S.H. was five-years-old at the time of the offense and that it occurred on on A.N.J.'s fourteenth birthday. However, S.H. would have been only three-years-old on A.N.J.'s fourteenth birthday. Appellant acknowledges S.H. could have been merely mistaken about how old she was at the time of the assault. However, he contends it would have been impossible for her to have remembered the details about the offense if she were only three. Appellant also asserts the child is not credible because she told CPS appellant's penis was "pink," but appellant presented testimony from a medical doctor that his genitals are not pink. Appellant further complains that, before S.H. made her outcry, she had denied being sexually assaulted when she was questioned regarding an unrelated matter. Finally, appellant complains of other discrepancies between S.H. and her sister's testimony regarding how S.H. traveled to appellant's apartment and how she left the apartment. The child in this case clearly and unequivocally testified appellant committed the offense as alleged. While there was some discrepancy concerning how old S.H. was at the time of the offense, A.N.J.'s testimony regarding the date she left S.H. at appellant's apartment was far from definitive. Nor are any other discrepancies in the evidence sufficient to show the jury's finding of guilt was manifestly unjust. After reviewing the record as a whole, we cannot conclude: (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. We resolve the second issue against appellant. In the third issue, appellant contends the trial court erred in excluding relevant evidence. At trial, appellant attempted to question S.H. about whether she had seen a second-grade boy expose himself to her at school. Appellant argued the evidence should be admitted because it would explain other evidence appellant "anticipated" the State was planning to present. The trial court stated it would exclude the evidence "for right now." In this issue, appellant asserts the trial court erred in excluding the evidence because after the trial court made its ruling, the State presented evidence showing S.H. was able to describe and draw a penis during her forensic interview. According to appellant, the excluded evidence would have explained how the child acquired such knowledge. However, appellant did not attempt to reoffer the testimony after evidence about the drawing was presented. We review a trial court's evidentiary ruling in light of what was before the court at the time of the ruling. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). Therefore, appellant has not shown error. We note that after the trial court made its ruling, appellant asked the trial court to let him know if the proffered evidence later "became" relevant. The trial court responded "Okay." We disagree with appellant that the trial court's response constituted an agreement to undertake the duty to monitor if and when appellant should reoffer the evidence. Regardless, to the extent any error did occur, it ostensibly occurred when the trial court did not inform appellant that the evidence had become relevant. Appellant did not object to that error. Thus, any such error was waived. See Tex.R.App.P. 33.1(a). We resolve the third issue against appellant. In the fourth issue, appellant contends the trial court erred in denying his motion for mistrial after the prosecutor improperly attempted to present a videotape into evidence. At trial, the prosecutor established that S.H. was given a forensic interview and that the interviewer, Lori Langston, was the proper outcry witness. A videotape of the interview was made and the prosecutor sought to have the interview played in lieu of outcry testimony. Outside the presence of the jury, appellant objected to playing the videotape because it was not a proper method of presenting outcry testimony. The trial court agreed with appellant and ruled the prosecutor could not present the videotape to the jury. When the prosecutor subsequently questioned Langston before the jury, she asked her whether a videotape was made and asked her to identify it. The trial court interrupted the prosecutor and, in a bench conference, asked her why she was raising the issue of the videotape after the trial court ruled it was not admissible. The prosecutor responded that she could still offer the tape to let the jury know it existed — and require appellant to object before the jury. The trial court reiterated it had already ruled the tape was inadmissible. The prosecutor persisted that appellant should have to object to the tape before the jury. The trial court then granted appellant a motion in limine. The prosecutor nevertheless continued before the jury by asking Langston whether the videotape constituted an accurate rendition of what occurred in the interview room. Langston responded "Yes." The prosecutor then stated "per the trial court's ruling I will just leave the videotape there." Later, appellant objected that Langston was testifying from notes she had taken. The prosecutor responded "if the defense would prefer, I can show the videotape, if he would prefer she not look at her notes." The trial court again chastised the prosecutor for mentioning the videotape. Appellant objected to the prosecutor's "sidebar." The trial court sustained the objection and instructed the jury to disregard. The trial court however denied appellant's motion for mistrial. On appeal, appellant asserts the trial court erred in denying his motion for mistrial. We review a trial court's denial of a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 841 (Tex.App.-Dallas 2002, pet. ref'd). A mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd, 3 S.W.3d at 567; Dooley, 65 S.W.3d at 840. A mistrial is only required when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). We have reviewed the statement of facts and it is apparent the prosecutor was intentionally attempting to circumvent the trial court's ruling. We do not condone such actions. Nevertheless, the prosecutor's conduct was not "so inflammatory as to prejudice the jury beyond repair." See Dooley, 65 S.W.3d at 840. We conclude the instruction to disregard cured any harm Id. We resolve the fourth issue against appellant. In the fifth issue, appellant contends the trial court erred in overruling his objection to improper jury argument. In closing, the prosecutor argued:
And to determine if a witness is telling the truth, how do you do that? By determining what their motivation would be to lie. And if you can come up with a reason why that little girl lied and you have some motivation for why she made this up against [appellant], then you set that man free. You find him not guilty, if you can come up with an explanation. And demand that of anyone that wants to find him not guilty —Appellant objected that the argument was improper because it was an "attempt to lessen the burden of proof." The trial court overruled the objection. In this issue, appellant asserts the trial court erred in doing so. The State may comment on the defendant's failure to present evidence in his favor. Johnson v. State, 651 S.W.2d 434, 437 (Tex.App.-Dallas 1983, no pet.); Harris v. State, 122 S.W.3d 871, 883 (Tex.App.-Fort Worth 2003, pet. ref'd). Here, appellant challenged the credibility of the victim. Thus, the State was permitted to comment on appellant's failure to present any evidence that she had a motive to lie. See Harris, 122 S.W.3d at 833. The comment did not shift the burden of proof, but merely summarized the "state of the evidence." See Johnson, 651 S.W.2d at 437. We resolve the fifth issue against appellant. We affirm the trial court's judgment.