No. 05-07-00502-CR
Opinion issued January 3, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-86279-UT.
Before Justices, FITZGERALD, LANG-MIERS, and MAZZANT.
AMOS L. MAZZANT, JUSTICE.
A jury convicted Roderick Mornix Sadler of aggravated sexual assault of a child younger than fourteen years. The trial court assessed punishment at thirty-five years' imprisonment. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
J.T., the complainant, testified she began attending Alcoholics Anonymous (AA) meetings with her father on Fridays or Saturdays when she was a small child. J.T. had seen appellant at those meetings and got to know him. Appellant gave J.T. his telephone number and she talked to him on the telephone several times. On November 26, 2005, before J.T. attended her father's anniversary celebration at the AA meeting, she talked to appellant on the telephone. J.T. was thirteen years old. During that conversation, appellant told J.T. to wear a skirt and no underwear. After J.T. arrived at the group meeting with her father and stepmother, she used the group telephone to call appellant's cell phone. Appellant, who was sitting in his car outside, told J.T. to come outside. J.T. got into appellant's car, then he drove to a vacant house nearby and parked in the driveway. Both J.T. and appellant moved to the back seat. J.T. testified appellant rubbed her arms, legs, chest, and vagina with his hand. Appellant got on top of J.T. and put his "hard" penis in her "private part." J.T. testified her private part was her vagina. J.T. testified "it hurt a little bit" when appellant "touched" her vagina with his penis. J.T. told appellant to stop. Appellant stopped, then drove J.T. to the opposite side of the building where the AA meeting was held. Appellant dropped her off so no one would see her get out of his car. As she walked towards the front of the building, J.T.'s father and stepmother were outside and asked where she had been. J.T. lied and said she went to the store. J.T., fifteen years old at the time of trial, testified she did not tell her parents about being with appellant or that she talked with appellant in private conversation on the telephone until a few weeks later. J.T.'s stepmother questioned her about whether anything happened between her and appellant on the night of her father's anniversary celebration. J.T. initially lied and said nothing happened between her and appellant, but eventually told her parents what appellant had done with her in his car. J.T.'s stepmother immediately called the police. J.T. testified she did not want the police involved because she felt responsible for what happened and she "made the decision to do it." J.T. initially testified that appellant "rubbed" her genital area and other parts of her body with his hand. After further questioning by the prosecutor, she acknowledged that appellant touched her "private part" with his penis but that it did not "go inside" her vagina. On cross-examination, defense counsel asked her to read to the jury her written statement to the police, which recited that appellant performed oral sex on her and then tried to "go all the way with me by sticking his penis in me a little because I felt it." After reading the statement, J.T. said she remembered appellant performing oral sex on her and putting his penis in her vagina. J.T. denied that she and appellant had sex. Later, the prosecutor asked J.T. if she testified that she and appellant did not have sex because his "private" did not "go all the way inside" her "private." J.T. responded, "Yes." Quinlon Sue Agent testified she has lived with J.T.'s father for eight years and, although they are not married, she considers herself to be J.T.'s stepmother. Agent, also a recovering alcoholic, attended group AA meetings with J.T.'s father and routinely saw appellant at the meetings. Group members usually listened to music and played cards and dominoes after the meeting. There were many times when Agent saw appellant playing cards with J.T. In November 2005, Agent went to the anniversary celebration for J.T.'s father. After the meeting, the members began playing cards. When Agent noticed that J.T. was not there, she and J.T.'s father began looking for her. After searching inside and outside the building for twenty minutes, she saw J.T. walking from the opposite side of the building. J.T. said she went to the store. Agent did not believe J.T. because there were no stores open at that time of night. Agent noticed that J.T.'s hair was "kinda flat" in the back. About one week later, J.T.'s father asked J.T. if anything happened between her and appellant on the night of his anniversary celebration. J.T. said, "No." But, later that evening, J.T. told Agent what appellant had done to her in his car. Agent immediately called the police. J.T.'s father testified he has attended AA group meetings in the evening for over seventeen years on an almost-daily basis. He took J.T. with him because he could not always find someone to care for her. In November 2005, he had an anniversary celebrating sixteen years of sobriety. J.T. and Agent went to the meeting with him, and appellant was also present at the celebration. After the meeting, group members played cards and dominoes. When J.T.'s father did not see J.T., he looked for her inside and outside the building. While outside, he saw J.T. walking from the opposite end of the parking lot. It was 12:15 a.m. at that time. He asked J.T. where she had been; J.T. said she had been walking. He noticed J.T.'s hair and said, "[w]hat happened to your hair?" J.T. did not say anything further. J.T.'s father testified that two weeks later, he fould out that J.T. had been with appellant that night. After a police detective was assigned to their case, J.T. showed her father and the police the vacant house where appellant parked and sexually assaulted her. He testified that about one week before his anniversary celebration, a group member told him he needed to watch appellant around J.T. Wanda Coleman, also attended the AA meetings and regularly saw appellant. Coleman testified she has known appellant for about ten years. One day while at the meeting, Coleman saw appellant and J.T. having a "heated argument." Appellant was arguing with J.T. "as if he was arguing with somebody his own age." Coleman told appellant that if he had a problem with J.T., he needed to tell her parents about it. Appellant told Coleman to mind her own business. Coleman testified she told J.T.'s father about what she saw because she thought appellant's behavior was inappropriate, and also told J.T.'s father he needed to watch appellant around J.T. Coleman testified she had previously seen appellant and J.T. laughing and giggling together, and viewed appellant's behavior toward J.T. as "flirtatious." Coleman also knew J.T. and appellant called each other on the phone because she usually answered the group telephone. Coleman testified she and appellant have had arguments in the past and she has "defended" herself with her hands. Charlene Bates is J.T.'s neighbor. Bates testified she takes J.T. to church with her twice a week because J.T. is in the junior choir and the "Steppers" group. Bates, who directs and teaches the Sunday school, testified she has known J.T. for about four years and J.T. is an honest person. Cindy Alexander, clinical director at the Dallas Children's Advocacy Center, testified as an expert on child sexual abuse. Alexander testified she did not know the specific facts of this case nor had she spoken to the complainant. Alexander testified a delayed outcry with a child is common because most children are embarrassed and ashamed about being abused, and such a delayed outcry does not affect the truthfulness of the outcry itself. When confronted, many children initially deny the sexual abuse occurred. Child sexual abuse usually occurs with someone the child knows because the perpetrator usually forms a relationship with the child. It is not unusual for a child or adolescent to participate in the sexual act. Additionally, a child who makes up allegations of sexual abuse is not able to provide many sensory details. Thus, if a child described a man's penis was "hard" and that something "hurt," those would be sensory details to consider in assessing the child's credibility. Appellant denied he had any sexual contact with J.T. Appellant testified he knew J.T. from seeing her at the AA meetings with her father. After the meetings, group members played cards and dominoes, and there were a few occasions when J.T. was his partner when he played cards. Appellant testified he did not remember November 26, 2005. At some time prior to November 26, 2005, J.T. told appellant she had a crush on him and liked him. Appellant did not mention this to anyone in the group, but he did tell a cousin. Appellant testified he never gave J.T. his telephone number or asked her to call him. According to appellant, J.T. obtained his telephone number from a flier he passed out. Appellant admitted he talked with J.T. on the telephone sometimes, but denied he talked to her on November 26, 2005. Appellant testified Coleman lied about him and J.T. calling each other on the group telephone because Coleman did not like him. Appellant further testified he had a prior felony conviction for burglary of a habitation and misdemeanor convictions for theft and burglary of a vehicle. Applicable Law
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 282 (U.S. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (U.S. 2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain a conviction for aggravated sexual assault of a child younger than fourteen years, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the contact or penetration of the sexual organ of J.T., a child under the age of fourteen, by appellant's sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2007). The State may prove penetration by circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990) (en banc). Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt. See Luna v. State, 515 S.W.2d 271, 273 (Tex.Crim.App. 1974). The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Discussion
Appellant argues the evidence is factually insufficient because J.T.'s testimony was ambiguous and not credible, she did not tell anyone about the alleged sexual assault until two weeks later, and none of the witnesses stated they saw anything. Appellant asserts that other than J.T.'s uncorroborated testimony, there is no evidence that appellant penetrated J.T.'s sexual organ with his penis. The State responds that the evidence is factually sufficient to support the jury's verdict. Courts give wide latitude to testimony given by child victims of sexual abuse. See Villalon, 791 S.W.2d at 134. The jury heard J.T.'s testimony describing penetration. See id.; Luna, 515 S.W.2d at 273. J.T. testified appellant put his "hard" penis in her vagina and she told him to stop because "it hurt a little bit." The jury is in the best position to evaluate the credibility of witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. Further, there is no requirement that the victim's testimony be corroborated by medical or physical evidence. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978). Appellant essentially argues that because none of the other witnesses testified they saw the alleged sexual assault and J.T.'s testimony was not credible, the jury should have believed his testimony over that of J.T. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Although there were — as the State freely admits — contradictions in J.T.'s testimony, the contradictions do not render the evidence factually insufficient because the jurors were allowed to weigh the discrepancies in J.T.'s testimony and either believe or not believe her testimony based on their evaluation of her credibility. See Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). Viewed under the proper standards, we conclude the evidence is factually sufficient to support appellant's sexual assault conviction. See Roberts, 220 S.W.3d at 524; Tear, 74 S.W.3d at 560; Luna, 515 S.W.2d at 273. We overrule appellant's sole point of error. We affirm the trial court's judgment.