Opinion
No. 05-06-01266-CR
Opinion Filed October 2, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court, Dallas County, Texas Trial Court Cause No. F04-50859-SH.
Before Justices MORRIS, FRANCIS, and MAZZANT.
OPINION
Charles Louis Taylor waived a jury and pleaded not guilty to aggravated sexual assault of a child under fourteen years of age. The trial court found appellant guilty of the lesser-included offense of sexual assault. After finding two enhancement paragraphs true, the trial court assessed punishment at twenty-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. S.M. was appellant's stepdaughter. S.M. testified she was raised by her grandmother because her mother Tammy was "in and out of jail." When S.M. was about fourteen years old, Tammy was out of jail and married to appellant. S.M. lived with Tammy and appellant for several months in 2001. S.M. testified appellant "started tampering with me" while she was asleep, but she did not know the exact date of the incident. S.M. came home from school one day and only appellant and her two-year-old sister were at home. S.M. took a shower, put on shorts, laid on the bed with her sister, and fell asleep. Appellant came into the room, pulled down S.M.'s shorts, then tried to "stick his penis in my vagina." S.M. told the court that appellant's penis touched her vagina and "[w]ent in a little bit inside but it didn't go all the way inside." S.M. woke up, told appellant to stop and he left the room. She called her grandmother to come get her, but did not say anything about the incident. S.M. did not seek medical or psychological help at that time. In April 2004, S.M. told her cousin Shaun that appellant tried to have sex with her. Shaun told S.M.'s grandmother about the allegations, and the grandmother called the police. S.M. told the court she saw appellant fight with Tammy often, saw both appellant and Tammy smoke crack cocaine in the house, and was told by both appellant and Tammy to prostitute herself for money "to get drugs." S.M. testified she never liked appellant because he "[a]lways put his hands on my mom." S.M. told Shaun about what appellant did to her because "[i]t wasn't right the way he did to me. And I don't want my little sister to go through it." S.M. said she had previously accused her grandfather Curtis M. of molesting her. When her grandmother took her to the police station, she started crying and recanted her accusations against Curtis. She told her grandmother that she recanted her allegations against Curtis because she did not want to have him put in jail. S.M. stated that Curtis sexually abused her, and that she also had consensual sex with a thirty-year-old male relative. She dropped out of school in the ninth grade when she became pregnant. Shaun M. told the court she and S.M. have a close relationship. Shaun knew about appellant through S.M. and Tammy, but had never meet him. Shaun testified that in April 2004, S.M. told her that appellant "tried to mess with her." At the time S.M. made her outcry to Shaun, both appellant and Tammy were in jail and S.M. was living with her grandmother. S.M. told her both appellant and Tammy were "doing drugs" in the house. One day appellant came into her room and told her they would "set her with other guys to be with for money," and on a different day, appellant came into her room and "tried to mess with her." Shaun stated that after S.M. talked to her, she called S.M.'s grandmother that same day. S.M. was "scared" about what would happen when she told what appellant had done to her because she had already witnessed violence between appellant and Tammy and did not know what appellant might do. Shaun said she knew about S.M.'s allegations of sexual abuse involving Curtis M. Diane T. is S.M.'s grandmother. Diane testified her daughter Tammy has six children, with S.M. being the oldest. Diane has raised all of Tammy's children from the time each was born because Tammy was "in and out of prison" most of the time. S.M. lived with Tammy and appellant for about one year, then came back to Diane when Tammy returned to prison. S.M.'s behavior was different when she returned after living with Tammy and appellant. S.M. began skipping school, ran away from home, and would not talk to Diane about what was bothering her. Diane permitted S.M. to live with Shaun. Diane knew that while staying with Shaun, S.M. told Shaun about all of the things that had been going on in Tammy's house. Diane was "shocked" when Shaun told her about the allegations S.M. made against appellant. When S.M. told Diane what appellant had done to her, S.M. was crying, scared, and did not want her to tell Tammy because of what appellant might do. S.M. told Diane that Tammy was in the house smoking crack cocaine when appellant came into her room and rubbed his penis on her vagina. S.M. said whenever appellant and Tammy smoked crack cocaine, appellant would come into her room and "mess with her." S.M. also said both Tammy and appellant made her prostitute herself. Diane testified that although S.M. refers to Curtis as her grandfather, Curtis is actually S.M.'s great-grandfather and Diane's father. Diane contacted Child Protective Services about S.M.'s accusations that Curtis sexually abused her. According to S.M., Curtis made her have sex with him in order to stay at his house. S.M. had sex with Curtis and another adult-male relative "on numerous occasions." Diane told the court that when she took S.M. to the police station on those allegations, S.M. came into the room where Diane was writing her statement and said she wanted to go home. S.M. never said she had lied about the allegations against Curtis. Diane testified that when Curtis lay sick and dying, she was at his bedside. Curtis asked Diane to forgive him for "molesting, having sex with S.M." Diane told Curtis she forgave him. Diane further testified S.M. never skipped school or ran away from home until after she had lived with appellant and Tammy, nor did Diane speak to CPS about S.M.'s behavior until after S.M. lived with appellant and Tammy. Kathryn N., appellant's sister, testified on appellant's behalf. According to Kathryn, S.M. was a disobedient child who did not go to school and hung around on the street with boys. Further, S.M. was not known in the community for telling the truth. Appellant told the court he married Tammy in January 2001. S.M. came to live with them when she was entering the seventh grade. S.M. began getting in trouble in school and skipping school even though appellant made her go to school every day. Appellant claimed that S.M. had behavioral problems and skipped school while she lived with her grandmother. Appellant testified the sexual assault S.M. described never happened. He did not know why S.M. would make up these allegations against him because he had a good relationship with her until she started skipping school. He described S.M. as promiscuous and said she made this type allegation against other men in the past. Appellant admitted both he and Tammy used cocaine in the house, but S.M. never saw the drugs or saw him use them. Appellant denied he made S.M. sell herself to pay for his drug habit or told her that Tammy wanted her to prostitute herself for drug money. Appellant testified he smoked about five rocks of crack cocaine a day, admitted he had "some fights" with Tammy, but testified he only hit Tammy on two occasions. Appellant said he had been to prison four times for burglary and drug convictions. In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's finding of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), petition for cert. filed, (U.S. July 17, 2007) (No. 07-5500); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a finding of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), petition for cert. filed, (U.S. Mar. 13, 2007) (No. 06-11318). 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 sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the contact or penetration of the sexual organ of S.M., a child, by the appellant's sexual organ. See Tex. Pen. Code Ann. § 22.011(a)(2)(C) (Vernon Supp. 2006). 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). Appellant argues the evidence is factually insufficient because he presented credible and unimpeached testimony that he was falsely accused. Appellant asserts S.M.'s testimony was unbelievable, unreliable, and not corroborated by any evidence, and S.M. never sought medical or psychological help after the alleged assault. The State responds that the evidence is factually sufficient to support appellant's conviction for sexual assault. S.M. testified appellant inserted his penis "a little bit inside" her vagina while she was asleep. She did not tell anyone about what appellant had done because she was afraid. S.M. told the court both appellant and her mother smoked crack cocaine in the house while she lived with them, and each time appellant used the cocaine, he would come into her room and "mess with her." S.M. told her cousin and grandmother that appellant put his penis on her vagina and "tried to mess with her," and told them about the drug use and fighting inside the house when she lived with appellant and her mother. Appellant admitted he was using drugs in the house while S.M. lived with him, but denied she ever saw him using the drugs or that the sexual assault ever occurred. Appellant testified he had a good relationship with S.M. until she started skipping school. Appellant's sister testified S.M. was not known in the community for being truthful. As the fact finder in this case, the trial court is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.); see also Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 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.