Opinion
No. 10-08-00051-CR
Opinion delivered and filed August 6, 2008. DO NOT PUBLISH.
Appeal from the 40th District Court Ellis County, Texas, Trial Court No. 31815CR. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Tobar appeals his conviction for indecency with a child, his stepdaughter M. W., by sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (Vernon 2003). We affirm. In one issue, Tobar contends that the evidence that he touched M. W. with his "sexual organ," as the indictment alleged, was factually insufficient. ( See 1 C.R. at 2.) "Evidence may be factually insufficient if: `1) it is so weak'" that the verdict is "`clearly wrong and manifestly unjust or 2) the adverse finding is against the great weight and preponderance of the available evidence.'" Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)); see Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). "[T]he evidence . . . is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or" if, "considering conflicting evidence, the jury's verdict . . . is . . . against the great weight and preponderance of the evidence." Berry at 854 (citing Watson at 414-15); see Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). "Such a factual sufficiency review requires the reviewing court to consider all of the evidence." Berry at 854 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007)). "[T]he evidence is reviewed in a neutral light. . . ." Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007); see Johnson, 23 S.W.3d at 7. "A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias." Berry at 854 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex.Crim.App. 2003)); accord Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). "[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury's verdict before it is justified in" reversing for factually insufficient evidence. Watson at 417. Tobar notes the following evidence. T. T., who is Tobar's wife and M. W.'s mother, testified that during the night, she went into the living room where Tobar was sleeping and turned on the light. She saw M. W. seated on the couch, with Tobar crouched over her with his pants and underwear down. Tobar jumped up, running out of the room while pulling up his underwear and pants, and saying that he had not done anything. M. W.'s panties were on the floor. M. W. said that she had "felt something down towards her private area," and that Tobar had done it before. (Tobar Br. at 5 (citing 3 R.R. at 73).) Teresa Evans, a forensic interviewer, testified that M. W. told her that when T. T. turned the lights on, M. W. saw Tobar quickly buttoning his pants. Tobar touched M. W. "on her private," that is, her "sexual organ," with what felt like "a round stick or a rubber bone," which hurt. ( Id. at 3 (citing 3 R.R. at 48, 49).) M. W. felt Tobar's stomach, but could not see what touched her in the dark with her eyes closed. Tobar told M. W. not to tell anyone. M. W., eight years of age at the time of the offense and nine at the time of trial, testified that immediately after T. T. turned on the lights, she saw Tobar buttoning up his pants. M. W. told doctors who examined her that her "privates hurt." ( Id. at 6 (citing 3 R.R. at 119).) Tobar concedes that he touched M. W.'s vagina; Tobar's theory of the case is that he might have touched M. W. with his finger or a "dildo" and not, as was alleged in the indictment, his penis. Tobar points primarily to the following evidence. Donna Wright, a sexual assault nurse examiner who examined M. W., testified that M. W. did not know what touched her. Evans testified that M. W. said that it was a round stick or rubber bone, but did not see it because she kept her eyes closed. M. W. testified only that something like a rubber bone was rubbing against her. T. T. testified that she saw Tobar's penis, but did not testify that it was erect. Nina Raney, T. T.'s sister, testified that T. T. had stated that Tobar's penis was erect, but Tobar questions the accuracy of Raney's testimony. Although M. W. was examined at a time when DNA evidence might still have been present, no such evidence was found on M. W.'s body. T. T. denied the presence of a dildo in the house; Tobar argues that he might have concealed it from T. T. Moreover, T. T. testified that on the night of the offense, Tobar had come home intoxicated after a party and that they had argued before Tobar went to sleep in the living room. M. W. testified that she sometimes took her panties off when she wet the bed; but that she did not wet the bed on the night of the offense. M. W. also testified that what she said happened to her could have been a dream. The State points primarily to the following evidence contrary to Tobar's theory. T. T. testified that she saw Tobar's penis and no dildo when she surprised Tobar, and that there was no dildo in the house. Tobar introduced evidence that M. W. told Wright that Tobar "put his privates inside [her] privates." (Tobar Ex. No. 1, at [7].) Moreover, Jeff Smith, a police detective who investigated Tobar's offense, corroborated that M. W. said that Tobar penetrated her vagina "with a rubber bone that was a part of his body." (Tobar Br. at 3 (citing 3 R.R. at 32-33).) Viewing the evidence in a neutral light, we hold that the evidence that Tobar touched M. W. with his penis was not so weak that the verdict was clearly wrong or manifestly unjust, and that the verdict was not against the great weight and preponderance of the evidence. The evidence that Tobar touched M. W. with his penis was thus factually sufficient. We overrule Tobar's issue. Having overruled Tobar's sole issue, we affirm.
A dildo is "an object serving as a penis substitute for vaginal insertion." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 633 (Philip Babcock Gove ed., unabr. 1993).