Opinion
No. 05-10-00330-CR
02-06-2012
TORA LAKEITH RUSSELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-08-72086-Q
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore Opinion By Justice O'Neill
A jury convicted appellant Tora LaKeith Russell of aggravated sexual assault of a child under the age of fourteen. After finding an enhancement paragraph true, the jury sentenced him to fifty years' confinement. We affirm the trial court's judgment.
Background
The complainant in this case was the step-daughter of Edward Richmond, who she often referred to as "Al." Al and appellant were close friends, and appellant often spent time with complainant and her family.
Complainant testified that "after my sixth grade, during the summer time, I was going on twelve" Al began sexually abusing her. She said it happened almost everyday. She then described an instance when Al made her have sex with him and appellant. She could not remember the exact date, but thought it was around September or October of 2006 when she was twelve.
She described to the jury how she refused to take her clothes off when Al asked her to so he took them off for her. Both men took off their pants and forced her to perform oral sex on them. Then Al made her bend over, and he proceeded to have vaginal intercourse with her while she continued to perform oral sex on appellant. Appellant and Al then switched positions, and she testified that appellant had vaginal intercourse with her.
She said she continued to have sex with appellant twice a week, but he was not allowed to ejaculate inside of her. Al was the only person allowed to do that. She testified she continued having sex with appellant through October of her eighth grade year.
In March of 2008, complainant told her mother about the abuse after her mother confronted her about possibly being pregnant. Complainant did not realize she was pregnant until she took a test at Planned Parenthood. She told her mother Al was the father because he was the only one who ejaculated inside of her. A few days later, she told her mother about appellant and a third man sexually abusing her.
Complainant's son was born July 19, 2008. DNA tests confirmed Al was the father.
Appellant was charged with aggravated sexual assault of a child under the age of fourteen "on or about May 1, 2007." The jury found him guilty and sentenced him to fifty years' confinement. This appeal followed.
Discussion
In a single issue, appellant challenges the legal sufficiency of the evidence to support his conviction. He contends the State elected to present as its case-in-chief an event with an impossible time line that is inconsistent with all the credible evidence. The State responds the child victim's testimony alone is sufficient to support appellant's conviction, and although the evidence raised a question as to the exact date of the offense, the State was not bound by the offense date alleged in the indictment.
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This standard gives full play to the responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 319. An appellate court will not reassess credibility because the factfinder is the sole judge of witness's credibility and the weight to be given the testimony. Id.
To obtain a conviction for aggravated sexual assault, the State was required to prove appellant intentionally or knowingly caused his male sexual organ to penetrate complainant's sexual organ, when complainant was younger than fourteen-years-old. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011).
The law is clear the State need not allege a specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App. 1997). It is well-settled the "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Id. at 256. Further, the date of the crime is not an element of the offense that must be proven. Owens v. State, 96 S.W.3d 668, 672 (Tex. App.-Austin 2003, no pet.). Therefore, the May 1, 2007 date in the indictment is to be liberally construed and need not be substantiated. See, e.g., Saucedo v. State, 04-02-00864-CR, 2003 WL 22298564, at *4 (Tex. App.-San Antonio Oct. 8, 2003, pet. ref'd) (not designated for publication).
In fact, an indictment that alleges the event occurred "on or about" a particular date serves as notice for the accused to prepare for proof that the incident could have occurred at any time within the statute of limitations period. Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988); see Ketchum v. State, 199 S.W.3d 581, 589 (Tex. App.-Corpus Christi 2006, pet. ref'd) (noting purpose of providing a date is to show that the prosecution is not barred by the statute of limitations). At the time of the charged offense, the statute of limitations for aggravated sexual assault was ten years from the eighteenth birthday of the victim. See Act of June 15, 2007, 80th Leg., R.S., ch. 593, § 1.03, 2007 Tex. Gen. Laws 1120, 1121 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 12.01(1)(B) (West Supp. 2011)). At the time of trial, complainant was fifteen years old.
Appellant's legal sufficiency claim is based exclusively upon his contention that evidence at trial showed the initial act of sexual contact occurred in the summer of 2007, an impossible date because he was in jail from May 7, 2007 to August 20, 2007. While we acknowledge appellant's arguments regarding the discrepancies in some of the testimony about the date of the event in question, the jury heard this testimony and believed the victim. She repeatedly testified the initial contact of vaginal and oral sex occurred in September or October of 2006 when she was twelve years old and in the seventh grade. She acknowledged appellant's jail time, but testified she remembered appellant had sex with her before that time. The evidence showed appellant was not in jail in September or October of 2006; thus, he was clearly available to commit the act described by complainant. Further, Detective Michael McMurray, the investigating detective, agreed there was time in 2006 when complainant was twelve that appellant was not in jail and available to commit the sexual abuse. Appellant has not attacked the sufficiency of the evidence to support any specific element of the offense. Rather, he essentially is challenging the complainant's credibility. The jury determines the credibility of the evidence, not the appellate court. Id. The State introduced evidence of the elements of the offense through complainant's testimony. Under Texas law, the uncorroborated testimony of a child victim, standing alone, is sufficient to support a conviction for aggravated sexual assault under section 22.021. See Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.). Further, where children are involved, the court of criminal appeals has cautioned that courts cannot impose unrealistic expectations regarding proof of when an offense actually occurred. See Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006); Sledge, 953 S.W.2d at 256 n.8. "It is not often that a child knows, even within a few days, the date that she was sexually assaulted. And the younger the child, the greater the possibility" that she will be uncertain about the timing of the offense. Sledge, 953 S.W.2d at 256 n.8. Thus, complainant's testimony alone is sufficient to support appellant's conviction. Id.
Accordingly, viewing the evidence in the light most favorable to the verdict, the jury heard evidence supporting each element of the offense of aggravated sexual assault of a child under the age of fourteen. The indictment stated the offense occurred "on or about May 1, 2007"; therefore, the State established it occurred before presentment of the indictment and within the statutory limitation period. See Sledge, 953 S.W.2d at 256; see Ketchum, 199 S.W.3d at 589 (date is not material element of the offense that must be proven in indictment and victim's testimony that assault occurred in 2006 rather than contrary evidence that it occurred in 2007 was sufficient to support conviction). Thus, appellant's sole issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish Tex. R. App. P. 47 100330F.U05