Ross v. State

Full title: JIMMY JOE ROSS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 18, 2004

Nos. 05-03-01470-CR, 05-03-01471-CR (Tex. App. Nov. 18, 2004)

Opinion

Nos. 05-03-01470-CR, 05-03-01471-CR

Opinion Filed November 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-74060-NQ and F02-74062-NQ. Affirmed.

Before Justices WHITTINGTON, BRIDGES, and FRANCIS.

OPINION

FRANCIS, Justice.

A jury convicted Jimmy Joe Ross on two charges of aggravated sexual assault of a child and assessed punishment at twenty-eight years in prison. In four issues, appellant complains about inadmissible hearsay evidence, the factual sufficiency of the evidence to support his convictions, and the trial court's ruling excluding reputation testimony. We resolve all issues against appellant and affirm the trial court's judgments. Eight-year-old J.R. and seven-year-old S.C. had been living with their grandmother, Carrie Mackey, for about three weeks when J.R. told Mackey she was bleeding from her vaginal area. Mackey initially believed that J.R. had begun menstruating, gave her a pad, and talked to both girls about "the birds and the bees." The next day, however, Mackey became suspicious and asked the girls if anyone had "messed" with them. Both girls began to cry and simultaneously told her appellant had. According to Mackey, the girls told her appellant put his "private part" in their "private parts," "butts," and mouths. Appellant was the girls' older cousin. At first, Mackey did not believe the girls. However, she believed the girls were telling the truth after medical examinations showed J.R. had sexually transmitted genital warts and S.C. had sexually transmitted warts around her anus. Both girls' hymens were abnormal, suggesting both had been penetrated. J.R. testified that appellant used to be her favorite cousin. She lived with him and several other people in an apartment on Hatcher before she moved in with her grandmother. One day, she and her sister were napping in appellant's bedroom when she awakened to find appellant on top of her and her underwear pulled down to her feet. J.R. testified appellant put his hands on her "private" and "chi-chis," which she identified as her vagina and breasts through drawings. She told appellant to stop, and he covered her mouth to where she could not breathe or talk. Appellant then put his "private," which she identified through drawings as his penis, in her private. J.R. said it "hurted" and she tried to push him away. According to J.R., this happened about twelve times on different days. Appellant also tried to put his private in her mouth, and his mouth touched her private and chi-chis. On some occasions, J.R. was alone with appellant and, at other times, S.C. was present. J.R. testified she also saw appellant do the same things to S.C. Appellant warned them if they told, nobody would believe them. J.R. testified she loved appellant but did not want him to hurt her or her sister anymore. S.C. testified she saw appellant put his "privacy" in J.R.'s "privacy" twice. S.C. said appellant did the same thing to her more than once. S.C. said appellant put his privacy in her privacy and her mouth. She also said appellant touched her on her privacy with his hand and put his mouth on her privacy. Using drawings, S.C. identified her privacy as a vagina and appellant's privacy as a penis. Both girls testified that something else happened with appellant, but neither would talk about it. Appellant, who was nineteen years old at trial, testified he did not sexually abuse either J.R. or S.C. Appellant testified he lived at the apartment on Hatcher with about fifteen other people, but said he was rarely at home. He testified he babysat the girls only once, but was outside most of the time. He also testified he was never alone with the girls. When the allegations were first made, appellant said even the girls' mother did not believe them and said they "lie." Appellant said S.C. had been caught lying before and J.R. was "that way too, sometimes." Appellant said he loved J.R. and S.C. but hated that they "lied" about him. Also testifying for appellant were his cousin, Patrice Ross, and his mother, Floy Mackey. Ross and Floy Mackey both lived in the apartment with appellant, J.R., S.C., and several other family members. Ross testified appellant was never at home and she never saw him alone with the girls, although Ross also said that she worked every day. Additionally, Ross testified the girls' mother had a different man at the house every day, although she could only name three men, one of whom was J.R.'s father. Floy Mackey testified she was at home every day and said appellant was never left alone with the girls. On cross-examination, Mackey acknowledged that she would leave to visit neighbors and would sometimes sit outside. The trial court did not allow either Ross or Mackey to testify about the girls' reputations for being truthful. After hearing the evidence, the jury convicted appellant of penetrating both girls' vaginas with his penis. This appeal ensued. In his first and second issues, appellant complains inadmissible hearsay was used to prove a necessary element, i.e. that the offense occurred in Dallas County. He argues this evidence also violated his constitutional right to confront witnesses against him. We disagree. The complained-of evidence was elicited during the testimony of Detective Michael Kemp, who investigated these offenses. The State asked Kemp if he had determined the cases had occurred in Dallas County, and Kemp replied he had. The following then occurred:

[PROSECUTOR]: How did you do that?

[WITNESS]: Based upon what the children told me.

[PROSECUTOR]: Regarding where the offenses occurred and did you check addresses to make sure that the offenses had occurred within the limits of Dallas, Dallas County, Texas?

[WITNESS]: Yes, it was a Dallas address.

Although appellant complains this testimony was inadmissible hearsay, he did not object. Instead, he argues we should address it as fundamental error but provides no authority to support his position. The Texas Court of Criminal Appeals has previously concluded that admission of hearsay evidence is not fundamental error and must be preserved with a timely and specific objection. See Moore v. State, 935 SW.2d 124, 130 (Tex.Crim.App. 1996). Consequently, we conclude appellant has not preserved his complaints. Even if appellant had preserved his complaints, admission of the testimony was, at most, harmless error. Assuming Kemp's testimony was objectionable hearsay, other witnesses, including appellant, testified as to the specific address where the girls said they were assaulted. Under these circumstances, Kemp's testimony that the address was in Dallas County does not require reversal. See Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998). As for any confrontation clause complaint, both girls testified at guilt-innocence and appellant had ample opportunity to cross-examine them. We resolve the first and second issues against appellant. In his third issue, appellant contends the evidence is factually insufficient to support his convictions because it is either too weak or greatly outweighed by contrary proof. In particular, he challenges the credibility of J.R. and S.C. while arguing that he "unequivocally" denied the allegations. The standard for reviewing the factual sufficiency of the evidence is well established. See Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Resolutions of conflicts in the evidence and credibility of the witnesses lie within the fact finder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). To support his factual insufficiency claim, appellant argues the girls were young, impressionable, and could have been confused. He argues there were many people going in and out of the apartment all the time, any of whom could have abused the girls. He also relies on evidence that both girls "lied" at times to keep out of trouble. Against these assertions, appellant contends he had neither the "means nor the motive to commit the acts." Specifically, he argues there were between twelve and nineteen people living in the apartment, suggesting he could not have had enough time alone with the girls to repeatedly abuse them. He also argues that he had a healthy sexual relationship with his girlfriend, "leaving him no motive to sexually attack two young girls." The jury in this case resolved any conflicts in the evidence and any credibility determinations. The evidence was undisputed that the girls had been sexually abused; both had sexually transmitted genital warts. And there is nothing in the evidence to suggest why these girls would lie about the identity of their assailant, especially in light of the fact that appellant was their favorite cousin who, at trial, they said they still loved. The girls testified in detail about the abuse they endured. Each testified she watched as appellant abused her sister. Although appellant denied sexually assaulting the girls and argues he was never home to commit the acts, the jury was not required to believe him. Having considered all the evidence in this case, we conclude it is not so weak that the verdict was clearly wrong and manifestly unjust nor was contrary evidence so strong that the standard of proof beyond a reasonable doubt could not be met. We resolve the third issue against appellant. In his fourth issue, appellant challenges the trial court's ruling excluding testimony from appellant's mother and cousin, Floy Mackey and Ross, that J.R. and S.C. had bad reputations for being truthful. In a hearing outside the presence of the jury, Mackey testified she had discussed the girls' reputations for being truthful with their parents, an aunt, an uncle, their grandmother, and two cousins, and their reputations were bad. On cross-examination, Mackey testified that J.R. lied about things she did at school and lied about taking food, candy, and money at home. Mackey said S.C. had been caught stealing from other children at school and had also lied about taking money and candy at home. Similarly, Ross testified she had discussed the girls' reputations for truthfulness with their mother, three aunts, an uncle, and appellant's mother, girlfriend, stepfather, and sister, and said their reputations were bad. On cross-examination, Ross admitted she had not talked to anybody at the girls' school and had talked to only one neighbor, whose last name she did not know. Ross said J.R. lied about being upstairs with a boy who was a year younger; being caught in bed with an adult male; doing lap dances on adult men. Ross said S.C. lied about being outside with a boy at school; playing "mommy and daddy" with the boy; playing "house" with her younger brother who put his penis near S.C.'s vagina; dancing "over grown men;" and "hunching" her brothers. Ross acknowledged that she was not present during most of these supposed occurrences. After hearing the two witnesses' testimony, the trial court would not allow it before the jury. Appellant argues the testimony was admissible as to general reputation for truth, "not simply general moral character." Assuming without deciding the trial court did err in excluding the testimony, reversal is not required. Error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). In assessing the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including the testimony or any physical evidence admitted for the jury's consideration; the nature of the evidence supporting the verdict; the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In this case, there was other evidence concerning the girls' truthfulness. For instance, the girls' grandmother, who was the States's outcry witness, testified that when they initially told her appellant had been sexually abusing them, she "thought they were lying." She also testified that S.C. was "sneaky" and lied to "protect herself" and to keep "from getting in trouble." She repeated the testimony about S.C. on cross-examination. In addition, appellant testified that the girls' mother said they "lie" and did not believe their allegations initially. Appellant testified S.C. had been caught lying before, and J.R. was "that way too, sometimes." Given this evidence, and in particular that of the grandmother, we cannot conclude that the exclusion of testimony by appellant's mother and cousin that the girls had "bad" reputations for truthfulness affected appellant's substantial rights. We resolve the fourth issue against appellant. We affirm the trial court's judgments.