Ruffins v. State

Full title: TIMOTHY LOPEZ RUFFINS, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jun 23, 2004

No. 05-03-01448-CR (Tex. App. Jun. 23, 2004)

Opinion

No. 05-03-01448-CR

Opinion issued June 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 296^th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-80091-03. Affirmed.

Before Chief Justice THOMAS, Justices LANG-MIERS and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

After a jury found appellant Timothy Lopez Ruffins guilty of aggravated sexual assault of a child, he pleaded true before the trial court to the allegations contained in the enhancement paragraph. The trial court found the allegations true and assessed appellant's punishment at twenty-five years in the Institutional Division of the Texas Department of Corrections.² On appeal, appellant raises only the issue of insufficiency of the evidence: whether the evidence is legally and factually sufficient to sustain his conviction. Although the evidence presented at trial was conflicting, we nevertheless conclude the evidence is both legally and factually sufficient to support the jury's verdict. Consequently, we affirm. Appellant is the uncle of the victim, R.J., who was six years old and in the first grade at the time of the offense. R.J. was spending the night at her grandmother's apartment when, according to R.J., she was sexually assaulted by her uncle, the appellant. She was awake on a pallet in the downstairs living room of her grandmother's two-story apartment, her brother was asleep on the couch near her downstairs, and her grandmother was asleep upstairs. Appellant, who lived with R.J.'s grandmother, came home late, had been drinking, went into the downstairs kitchen next to the living room and continued to drink from a brown beer bottle. After putting the bottle down, he stumbled into the living room, lay down by R.J. and got under the covers with her. He pulled up his shirt, unzipped his pants, pulled down R.J.'s underwear, and got on top of her. R.J. felt appellant's hard "private part" in her private part and it "hurted."³ Appellant "moved up and down" on her and kissed and sucked on her neck during the sexual assault. R.J. screamed for help, but to no avail, even though her brother was asleep nearby. Appellant put his hand over R.J.'s mouth and told her to shut up. Afterwards, appellant left. R.J. did not tell anyone that night about the sexual assault. The next morning when her mother came to pick up R.J. she noticed what appeared to be a red rash around R.J.'s neck. It had not been there the day before. When asked by her mother what caused the rash, R.J. shrugged and said she did not know. Her grandmother also said she did not know what caused the rash. R.J.'s mother ultimately learned what had occurred and questioned R.J. and R.J.'s grand-mother about it.⁴ She also confronted appellant, who denied the events occurred. R.J.'s mother did not call the police because R.J.'s grandfather told her he would investigate the matter; however, she did not think he ever did anything about it. The matter simply was not discussed within the family for some two years. R.J. thought everyone had forgotten about it. Some two years later, R.J. confided in another friend. That friend told another of her friends who eventually told R.J.'s teacher. Child Protective Services (CPS) was contacted, became involved and investigated the allegations. Their investigation included a physical examination of R.J. which showed no physical trauma. R.J.'s version of the facts to CPS was consistent with the version she had told her mother previously. Both R.J.'s grandmother and grandfather testified at trial. Both testified that R.J. was lying and both denied the assault occurred.⁵ Their testimony conflicted, not only with each other's, but also with the testimony of other witnesses. R.J.'s grandmother testified that, even though she and her husband had separate residences, they never spent the night apart. R.J.'s grandfather testified that they often slept apart, sometimes for as long as a month; however, on the night of the alleged assault, he was at his wife's apartment. R.J.'s grandmother testified she was on the couch downstairs watching TV until 4:00 a.m. on the date in question, that appellant left for work that evening about 11:15 p.m. and did not come home until around 7:00 a.m. the next morning when his shift ended. She denied being asked by R.J.'s mother about a red rash on R.J.'s neck and also denied having a confrontation with R.J.'s mother and appellant. In short, she said R.J. and R.J.'s mother were lying. The testimony of R.J.'s grandmother and grandfather was consistent about the time appellant left for and returned from work and the fact that he, the grandfather, was in the apartment on the date in question. R.J.'s grandfather said he told R.J.'s mother, his daughter, to take R.J. to the doctor, even though he contended R.J. was lying about the sexual assault. He testified he did not deny that R.J. was sexually assaulted but denied that appellant did it, suggesting it was R.J.'s biological father who assaulted her. Asked why he believed it was her biological father, he stated because her biological father had "bounced her on his knee." He said when he saw that he told her to get off her father's knee because that was no place for little girls. On rebuttal, the State introduced appellant's work records which showed that appellant did not work the shift testified to by R.J.'s grandparents, but were consistent with R.J.'s version of the events. During the course of its deliberations, the jury wrote a note asking to have certain testimony reread to them to determine whether the prosecutor had first mentioned that appellant "moved up and down" or whether R.J. had first used that phrase. When reread, the testimony reflected that R.J., not the prosecutor, had first used the term "moved up and down." Shortly thereafter, the jury returned a guilty verdict.

2 Although appellant was indicted in a two-count indictment alleging both aggravated sexual assault of a child and indecency with a child, only the aggravated sexual assault charge was submitted to the jury.

3 R.J. identified the vagina and the penis on respective anatomically correct dolls as "private parts."

4 The testimony is ambiguous about when and how R.J.'s mother learned of the sexual assault. R.J. testified she told her mother about it a couple of days later and also confided in her cousin, Stephanie. R.J.'s mother recalled that she first learned of the assault from her brother in California, Stephanie's father.

5 Testimony conflicts on whether the grandfather was present in the apartment on the evening in question. The grandfather's testimony is also inconsistent about whether he believed a sexual assault occurred at all or whether he believed a sexual assault occurred but that appellant did not commit it-suggesting that R.J.'s biological father did it.

Legal Sufficiency Standard of Review

The standard of review for legal sufficiency of the evidence is well established and well known to the parties. The reviewing court considers all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Lee v. State, 29 S.W.3d 570, 574 (Tex. App.-Dallas 2000, no pet.). It is the jury's exclusive province to reconcile conflicts in the evidence and a reviewing court should not re-evaluate credibility of the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1997).

Factual Sufficiency Standard of Review

The factual sufficiency standard of review for appellate courts was first established in Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996). Clewis requires an appellate court to review all of the evidence neutrally without the prism of "the light most favorable to the prosecution." Id. at 129. Since Clewis, the court of criminal appeals has attempted to clarify or modify the Clewis standard in a number of opinions, including Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997), Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000), Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App. 2001), and Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex.Crim.App. 2003). It is the jury's duty to resolve conflicts in the evidence and to decide the weight and credibility of the evidence. See Cain, 958 S.W.2d at 408-9. When the evidence is conflicting, the jury's verdict is generally regarded as conclusive. See id. at 410. A jury's verdict is not manifestly unjust or clearly wrong merely because the jury resolved conflicting views of the evidence in favor of the State. See id. The most recent pronouncement on the factual sufficiency standard is set out in Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Crim.App. Apr. 21, 2004). Consequently, we have analyzed the evidence in these cases applying the Zuniga standard. As we read Zuniga, an appellate court must analyze all of the evidence in a neutral light in determining the ultimate issue: whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See id. 2004 WL 840786, at * 7. In relevant part, the indictment charged that appellant on or about November 1, 1998, "did then and there intentionally and knowingly cause the female sexual organ of [R.J.], a child then younger than fourteen (14) years of age, and not the spouse of the defendant, to contact the male sexual organ of defendant. . . ." A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the sexual organ of a child younger than fourteen and not his spouse to contact his sexual organ. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon 2003). The testimony of a child victim alone is sufficient to support a conviction in a sexual assault case. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.-Dallas 1998, pet ref'd). A victim's outcry statement is probative. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim. App. 1991). R.J.'s testimony alone is sufficient to support the jury's verdict. R.J. testified that appellant was not her spouse. She detailed the events of her uncle coming home late at night drinking, drinking still more beer in the kitchen, coming into the room where she was on a pallet in the floor, getting under the covers with her, pulling his shirt up and his pants down, and getting on top of her. After identifying the respective parts on anatomically correct dolls as "private parts," the victim testified that appellant put his hard private part inside of hers "skin to skin" and "moved up and down." She said she screamed because it "hurted." She also testified that appellant kissed and sucked on her neck during the assault. This particular testimony was corroborated by her mother's testimony that the following morning when she picked up R.J., she noticed a red rash on her child's neck. R.J.'s version of events as told to the Child Protective Services worker was consistent with what she had told her mother two years before. R.J. was six years old at the time of the offense and in the first grade. At the time of trial, she was eleven years old and in the sixth grade. Viewing this evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant caused R.J.'s female sexual organ to contact his sexual organ. We conclude, therefore, the evidence is legally sufficient. In reviewing the evidence for factual sufficiency we view all the evidence neutrally. Appellant contends the evidence is factually insufficient to support the verdict because it rests almost solely on R.J.'s "vague" and "inconsistent" testimony and, therefore, falls short of the proof required to prove the sexual assault beyond a reasonable doubt. Specifically, appellant contends that R.J.'s testimony only shows: "(1) she was on the floor and appellant was on top of her but not between her legs; (2) she felt something `on' her private, but where that is exactly is unclear; and (3) she does not know what was touching her." The State responds that appellant's characterization of R.J.'s testimony as "vague" and "inconsistent" is unpersuasive. Notwithstanding minor inconsistencies, the State argues that R.J.'s testimony about vaginal penetration was absolutely clear.⁶ The State further notes that appellant's attorney on appeal is the same attorney who cross-examined R.J. at trial and it was he who attempted to minimize appellant's actions at trial by describing appellant as being "on" R.J.'s private part; therefore, it is disingenuous of him to now contend it is unclear what R.J. meant by that. Viewing all the evidence under the Zuniga standard in a neutral light, as we must, we conclude the evidence of appellant's guilt is neither so weak as to undermine confidence in the jury's finding of guilt nor is it greatly outweighed by contrary evidence. The evidence is factually sufficient to support appellant's conviction for aggravated sexual assault of a child. We resolve appellant's issue against him and affirm.