Opinion
Nos. 05-10-00672-CR, 05-10-00673-CR
Opinion Filed October 25, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F09-32977-PR F09-32976-PR.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
Dexter Sturgeon Jr. appeals his convictions for the aggravated sexual assault of S.W., a child younger than fourteen by causing (1) the penetration of S.W.'s sexual organ with appellant's sexual organ and (2) the penetration or contact of S.W.'s mouth with appellant's sexual organ. After finding appellant guilty of both counts, the jury assessed punishment at life and seventy years in prison respectively. In four issues, appellant contends the evidence is insufficient to support his convictions, the trial court erred in excluding certain evidence, and the trial court erred in failing to instruct the jury on a lesser included offense concerning the oral penetration/contact charge. We affirm. S.W.'s mother began dating appellant when S.W. was about ten years old and, within months, Mother, S.W., and her half-sister, C.W. moved in with appellant. Shortly thereafter, appellant began touching S.W., forcing her to perform oral sex on him, and having sexual intercourse with her. When appellant told Mother to bring S.W. to him, Mother did so. The abuse continued until S.W. was fourteen or fifteen years old. One day, S.W. told Mother if the abuse did not stop, she would take C.W. and leave. Mother pulled the girls out of school, packed their things, and moved the girls to Amarillo where they lived with their grandmother. Later, S.W. told C.W., her grandmother, and others about the abuse. Appellant was convicted of penetrating S.W.'s vagina and mouth with his sexual organ at a time when S.W. was younger than fourteen years of age. In his first issue, appellant contends the evidence is insufficient to support his convictions because the witnesses lacked credibility. We disagree. In reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the jury's verdicts to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). We give deference to "the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 14. The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). A person commits the offense of aggravated sexual assault of a child younger than fourteen years of age if he intentionally or knowingly causes the penetration of the child's sexual organ by any means or causes the penetration of the child's mouth by his sexual organ. Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i), (ii); (2)(B) (West 2011). A child's testimony alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd). The indictments and jury charges alleged appellant intentionally or knowingly caused the contact and penetration of S.W.'s female organ by his sexual organ and caused the contact and penetration of S.W.'s mouth by his sexual organ and, at the time of the offenses, S.W. was younger than fourteen years of age. S.W. was born in November 1991. At trial, S.W. testified she was about ten years old when she, C.W., and Mother moved in with appellant in Irving. She described the time living with appellant as "bad." When she was eleven or twelve years old, he began touching her and putting his finger and his penis in her vagina. Appellant also made S.W. perform oral sex by placing his penis in her mouth. She first remembered this happening at the apartment on Tudor Lane and said it continued at the house on Nursery Road. S.W. and C.W. had bunk beds; C.W. slept on the top bunk. Appellant often told C.W. bedtime stories while he was assaulting S.W. in the lower bunk or on the floor. He made Mother get S.W. from her room and bring her to him. S.W. fought Mother when this happened but Mother grabbed her by the arm or hair and dragged her to appellant. S.W. then had to perform oral sex on appellant. Sometimes appellant fondled Mother while S.W. was performing oral sex. Appellant and Mother made S.W. take a weekly pregnancy test. According to Mother, she met appellant in an on-line chat room. They began dating in September 2001 and, in January of 2002, Mother, S.W. and C.W. moved in with appellant. They lived in an apartment on Story Road for several months. Mother hoped appellant would be a father to her children but a few months after they moved in together, appellant began sexually abusing S.W. who was ten years old at the time. Appellant forced S.W. to perform oral sex, placing his penis in her mouth. He also had sexual intercourse with S.W., placing his penis in S.W.'s vagina; he referred to this as having S.W. "ride him." In 2003, when S.W. was eleven years old, they moved to another apartment on Tudor Lane. At this point, Mother became "involved" in the abuse. If appellant wanted S.W. to perform oral sex on him, he told Mother to bring S.W. to him. Although S.W. fought back, Mother dragged her to appellant and forced her to perform oral sex on him. Occasionally appellant made Mother bring S.W. to him for sexual intercourse. According to Mother, appellant sexually assaulted S.W. repeatedly whenever he wanted. The abuse continued until S.W. was fourteen years old. Mother conceded she was bipolar and sometimes told lies but said she was not lying to the jury about the abuse. Appellant had sexual intercourse with S.W. "[m]ore than fifty times"; when asked how many times appellant forced S.W. to perform oral sex, she replied, "Whenever he wanted it" and that it happened "[m]ore than once a week." Mother admitted she had been charged with aggravated sexual assault of a child for her role in appellant's abuse of S.W. She agreed to testify about appellant's actions in exchange for a fifty-year cap on her punishment. Nevertheless, appellant argues the witnesses were not credible. Specifically, he contends S.W. made up the claims because he was strict and Mother went along with S.W.'s allegations because Mother had mental issues. The jury observed Mother and S.W. testify as well as other witnesses, and concluded they were credible. Their testimony established appellant began forcing S.W. to perform oral sex and have sexual intercourse with him, at the latest, in 2003, making her at most twelve years old at the time of the abuse. Having reviewed the evidence in the light most favorable to the judgment, we conclude the jury could have rationally found each element of the offenses beyond a reasonable doubt. We overrule appellant's first issue. In his second and third issues, appellant claims the trial court abused its discretion in excluding evidence about Mother's own abuse at age five, and S.W.'s grandmother's attempt to get S.W. and C.W. away from appellant and Mother. Appellant contends the court's ruling violated his Sixth Amendment right to confrontation and the right to expose a witness's bias under Texas Rule of Evidence 613. We apply an abuse of discretion standard when reviewing a trial court's decision to admit or exclude evidence. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). We uphold a trial court's evidentiary ruling as long as it is within the "zone of reasonable disagreement" and correct under any legal theory applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Relevant evidence is admissible at trial if permitted by the Confrontation Clause of the Sixth Amendment to the United States Constitution or the Texas Rules of Evidence. See Billodeau v. State, 277 S.W.3d 34, 40 (Tex. Crim. App. 2009). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. To the extent appellant claims the trial court's rulings violated his right to confront the witness under the Sixth Amendment to the United States Constitution, we note appellant did not raise this ground or theory during trial. He did not present any argument or rationale explaining why the offered evidence was permitted or authorized under the Sixth Amendment. We therefore conclude he was waived this particular complaint. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (because appellant did not object to error under Confrontation Clause, he waived argument on appeal). We now address his argument with respect to rule 613. The rules of evidence permit a witness to be cross-examined on specific instances of conduct when the instances are used to establish the witness's specific bias, interest, or motive for testifying. See Tex. R. Evid. 613. Under Rule 613(b), the opponent must first cross-examine the witness with the circumstances surrounding the bias, interest, or motive; if the witness denies the circumstances or the motive, the opponent may introduce extrinsic evidence to prove the motive or bias. Appellant stated the evidence about Grandmother's actions was to show the "dynamics" between S.W., Mother, and Grandmother, and the "pattern here that when the little girls are with Grandma, allegations of abuse seem to come forward." Appellant intended to offer the evidence of Mother's abuse to show Mother's bias or motive, arguing Mother was supportive of S.W.'s claims because Grandmother did not believe Mother's claims of abuse. Appellant was allowed to question Mother outside the jury's presence about her prior abuse but the trial court ultimately sustained the State's objections and did not allow either line of questioning. Grandmother was not a witness at trial. Rule 613(b) allows impeaching a witness with proof of circumstances or statements showing the witness's bias; the rule does not allow appellant to question Mother about Grandmother's actions in an attempt to show Grandmother's bias, interest or motive. See Tex. R. Evid. 613(b). The trial court did not err in excluding this evidence. With respect to evidence of Mother's abuse when she was five years old, we fail to see how this evidence is relevant to S.W.'s abuse. Although appellant questioned Mother about the events, he did not ask if her prior abuse as a child had any bearing on whether she believed S.W.'s claims. Nor did he ask Mother if she was compelled to believe S.W. solely or primarily because Grandmother did not believe Mother's claims. To the extent appellant argues the evidence was relevant to show bias or motive, he did not establish either ground through Mother's testimony outside the jury's presence. Under these circumstances, we cannot conclude the trial court abused its discretion in excluding this evidence. We overrule appellant's second and third issues. In his final issue, appellant claims the trial court erred when it denied his request for an instruction on the lesser included offense of contact or penetration of S.W.'s mouth by appellant's sexual organ at a time when S.W. was younger than seventeen years of age, rather than the charged fourteen years of age. The State concedes the first prong likely has been met but argues the second prong has not. We agree with the State. A defendant is entitled to an instruction on a lesser included offense when the lesser included offense is included within the proof necessary to establish the charged offense and some evidence in the record shows that if the defendant is guilty, he is guilty only of the lesser included offense. Young v. State. 283 S.W.3d 854, 875 (Tex. Crim. App.) (per curiam), cert. denied, 130 S.Ct. 1015 (2009). Under the second prong, we must consider all of the evidence introduced at trial. See Young, 283 S.W.3d at 875. "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). The evidence must establish the lesser included offense as a valid and rational alternative to the charged offense. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). Here, the evidence showed appellant began abusing S.W. by forcing her to place his penis in her mouth when she was younger than fourteen years old. S.W.'s testimony established appellant began this abuse when she was "eleven or twelve" years old; Mother testified appellant forced S.W. to perform oral sex on him when S.W. was about ten years old. Although both testified the abuse lasted until S.W. was fourteen or fifteen years old, no evidence exists in the record that appellant was guilty of forcing S.W. to perform oral sex on him only after she turned fourteen years old. The trial court did not err in denying appellant's request for an instruction on the lesser included offense of contact or penetration of S.W.'s mouth when S.W. was younger than seventeen years of age. We overrule appellant's final issue. We affirm the trial court's judgments.