No. 05-05-00179-CR
Opinion Issued October 18, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-81803-03. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice WRIGHT.
A jury convicted Anthony Joe Turley of one count of aggravated sexual assault of a child and one count of indecency with a child. The trial court sentenced appellant to forty years' and twenty years' imprisonment, respectively. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgments.
The two counts are alleged in one indictment. There are separate judgments for each count.
Background
J.B., who was ten years old at the time of trial, testified appellant moved into his mobile home in May 2003. The home had three bedrooms. Appellant stayed in J.B.'s mother's bedroom; J.B. had his own bedroom; and appellant stored his belongings in the middle bedroom. J.B.'s younger brother G.A., who was two years old at the time appellant lived in the home, stayed in his mother's bedroom. J.B. testified his mother worked at a gas station and appellant had a job as an electrician. Appellant would sometimes watch J.B. and G.A. when their mother was working at night. J.B. testified about three incidents involving pornography and sexual abuse. In the first incident, J.B. and G.A. were in the living room one evening when his mother was at work. Appellant got up from his chair, went to the middle room where his things were stored, then came back into the living room and put a videotape in the VCR. When J.B. realized the video showed adult men and women having sex, he got up and wanted to go to a friend's house. Appellant told J.B. that he was not allowed to go anywhere after dark. J.B. then tried to go to his bedroom, but appellant told J.B. to sit on the floor and watch the movie. J.B. complied with appellant's command. One evening a few days later, appellant made J.B. watch a different pornographic movie in the living room. His mother was at work. While appellant and J.B. watched the movie, appellant ordered J.B. to come to his chair. As J.B. stood in front of appellant's chair, appellant grabbed J.B.'s hand and put it on appellant's penis, which was outside appellant's clothing. Appellant made J.B. move his hand up and down until appellant ejaculated on J.B.'s hand. J.B. went to the bathroom and washed his hands. When J.B. came back into the living room, appellant said, "You better not tell anyone or else you'll get in trouble." Later, appellant gave J.B. five dollars. On another occasion, J.B. testified, appellant put his penis into J.B.'s anus. J.B. said appellant made him watch another sex video in the living room, then called J.B. into the room where appellant stored his belongings. Appellant pushed J.B. down on the floor. As J.B. tried to get up, appellant got down on his knees, pulled J.B.'s pants down, and inserted his penis into J.B.'s anus. After appellant ejaculated, he stuck his finger in J.B.'s anus. Appellant then made J.B. insert a "blue toy" into appellant's anus. J.B. followed appellant's instructions as to what to do with the toy and stopped when appellant told him to stop. J.B. then went into the bathroom and noticed blood on his anus. J.B. testified appellant offered him money four or five times, but J.B. refused to take money from appellant. In court, J.B. identified three videotapes that he had watched with appellant and a blue rubber penis and pink vibrator that had been found in the master bedroom. J.B. told his aunt about what appellant had done about four weeks after the incident when appellant put his penis in J.B.'s anus. J.B. then told his uncle and his grandmother. J.B. testified he was mad at appellant for not letting him go to a friend's house after dark, but he would never make up these allegations against appellant because of that. Melissa Bennett, the outcry witness, testified she is married to J.B.'s uncle. J.B. spends weekends and time in the summer at her house. One day in June 2003, J.B. said that appellant "paraded" around the house in thong underwear. Several days later, J.B. told Melissa that he had found a pink vibrator and a blue vibrator at home that were shaped like a penis. J.B. said appellant told him he used them on J.B.'s mother. J.B. also told Melissa that when his mother was at work at night, he and appellant watched sex videos. Appellant would masturbate and make J.B. touch him, and appellant would give J.B. money for sex acts. J.B. said appellant put his penis in J.B.'s "butt," then appellant made J.B. put the blue vibrator in appellant's "butt." Appellant told J.B. not to tell anyone or J.B. would be in "big trouble." Melissa testified she was hysterical when J.B. told her what appellant had done. She called her husband and told him to get home right away. When her husband got home, he talked with J.B. alone, then they called the police. The police advised them not to tell J.B.'s mother about the allegations until they had completed their investigation. Tony Bradley, an investigator with the Sheriff's office, testified he investigated the sexual abuse allegation. According to Bradley, the outcry was made on June 9, 2003 and the forensic interview at the Collin County Children's Advocacy Center (CCCAC) was on June 13, 2003. Bradley observed J.B.'s interview. J.B. was somewhat reluctant to talk about the sexual abuse, but did not appear to be angry or trying to get appellant in trouble. Bradley searched J.B.'s house after obtaining consent from J.B.'s mother. Bradley found adult sex videos in the middle bedroom where J.B. had told them he saw the videos in a box. Bradley found a blue dildo and a pink vibrator in a dresser drawer as J.B. had described. Beth Hudson, a certified sexual assault nurse at CCCAC, testified she performed a genital exam on J.B. Hudson did not see any injury to J.B.'s anus. Hudson testified she did not expect to find any signs of trauma because of the time factor since the assault. Because the anus heals itself quickly, there are no signs of trauma in ninety-five percent of non-acute exams. Laurie Bennett, J.B.'s mother, testified she met appellant in the summer of 2001 while she was working at a gas station. Appellant was a regular customer, and they developed a friendship. In the spring of 2003, appellant moved into her home. Appellant lived in her home for five weeks before he was arrested. During appellant's time there, Laurie asked him to purchase sex toys for her because she was curious about their use. According to Laurie, appellant would have her insert the blue dildo into his anus. Laurie testified she never had sexual intercourse with appellant; they only had the one encounter where appellant used the vibrator and dildo to penetrate her vaginally and anally. Laurie testified appellant never told her that J.B. had found the sex toys in their bedroom. Appellant denied that he penetrated J.B.'s anus with his penis or finger or that he had any type of sexual contact with J.B. Appellant testified he moved into Laurie's home on May 2, 2003 because the lease on his apartment had expired and he wanted to save money in order to move back to Georgia. Appellant, who worked as an electrician, left for work at 5:00 a.m. and returned home between 5:30 p.m. and 6:00 p.m. J.B. was home sometimes when appellant got home, but most of the time J.B. was at a friend's house. One day when appellant came home from work, he found J.B. in the middle room going through appellant's things. J.B. was standing next to a box where appellant kept his adult videos, and the box was open. Appellant became angry and ordered J.B. out of the room. The videos J.B. identified in court belonged to appellant, but appellant denied ever showing any adult videos to J.B. Appellant testified that on one occasion, he came out of his bedroom and saw J.B. coming from his room with an adult video in his hand. Appellant believed J.B. had been watching that video in his own room. Appellant testified he and Laurie had a sexual relationship; they had sexual intercourse on more than five occasions; and he purchased the sex toys because she wanted to try them. Appellant testified Laurie lied when she said she used the blue sex toy to penetrate appellant's anus because he has never had anal sex with Laurie. Appellant claimed Laurie also lied when she said she never had vaginal intercourse with him. Appellant testified he lived in Laurie's home for five weeks and took on the father role for Laurie's two sons. He enforced the rules about not going to a friend's house after dark and tried to make sure J.B. did his chores. According to appellant, J.B. would try to sneak out of the house after dark, and he and J.B. would argue about it. Appellant claimed he gave J.B. five dollars as an allowance for his chores and not for anything sexual. Appellant testified he never watched any adult videos while living in Laurie's house, he never showed adult videos to J.B., and he had medical problems that prevented him from being able to get down on his knees. On cross-examination, appellant admitted he had one prior burglary conviction. He admitted the surgery on his knees was thirty years ago and he had worked as an electrician for twenty-two years. Appellant testified there was nothing excessive about J.B.'s behavior during the time he lived in the house, such as hitting, breaking things, or setting fires. Appellant said the only reasons he could think of as to why J.B. was making up the sexual abuse allegations was because appellant would not let J.B. go to his friend's house after dark and appellant would not play video games with J.B. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To obtain a conviction for aggravated sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the penetration of the anus of J.B., a child younger than fourteen years, by appellant's sexual organ and finger, and that appellant caused the anus of J.B. to contact appellant's sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(I), (iv) (Vernon Supp. 2004-05). To obtain a conviction for indecency with a child, the State was required to prove beyond a reasonable doubt that appellant, with the intent to arouse or gratify his own sexual desire, engaged in sexual contact with J.B., a child younger than seventeen years and not appellant's spouse. See id. § 21.11(a) (Vernon 2003). "Sexual contact" includes the touching of any part of the body of a child with any part of the genitals of a person. See id. § 21.11(c)(2). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child and indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004-05); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Discussion
Appellant argues the evidence is legally and factually insufficient because the only evidence of sexual contact was J.B.'s oral statements, and his testimony was contradictory. Appellant asserts there was no physical evidence of sexual abuse, no determination made as to when the alleged sexual assault occurred, and J.B. made his outcry because he was angry at appellant for disciplining him. The State responds that the evidence is legally and factually sufficient to support appellant's convictions. J.B. testified appellant penetrated his anus with appellant's penis and finger, and that appellant forced him to masturbate appellant with his hands while he and appellant watched a pornographic video. J.B. testified the sexual abuse began after appellant moved into their home after he had already ended school. Appellant testified he moved into J.B.'s home on May 2, 2003, and lived there for only five weeks. Appellant denied he penetrated J.B.'s anus or had any type of sexual contact with J.B. Appellant testified J.B. might have made up these allegations because he was mad at appellant for disciplining him. Appellant essentially asks us to believe the evidence contrary to the verdict and only his version of events. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve any conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We resolve appellant's issues against him. We affirm the trial court's judgments.