No. 05-04-00841-CR
Opinion Issued May 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause No. F03-73033-MK. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
JOSEPH B. MORRIS, Justice.
A jury convicted Fredrick Bernard Williams of aggravated sexual assault of a child. He complains on appeal that the evidence against him is legally and factually insufficient and the trial court erred in determining that a forensic interviewer was the proper outcry witness for the child complainant. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
The child complainant in this case is appellant's niece. She was almost nine years old at the time of trial. The complainant testified that she once lived at her grandmother's apartment. The complainant's great-uncle and great-grandmother also lived at the apartment. The complainant stated that appellant put his "private" on hers. The child said that appellant did this in several rooms of the apartment during the day and at night. Using diagrams, the child indicated that by "private" she meant the male and female genitals. She claimed her grandmother was at bingo or at the store when appellant sexually assaulted her and her great-uncle was present but did not know what was occurring. The child complainant testified that appellant's private part looked like a "U." She said she saw white "goo" come out of appellant's private. Afterward she saw appellant wipe up the "goo" with toilet paper and throw the paper in a trash can. She stated that the skin of appellant's private part touched the skin of her private part. She said his private part stayed on the outside of her private part. He also put his mouth on her private and on her chest. He licked her private and her bottom. The complainant said appellant warned her that he would "get" her if she told anyone about what he was doing to her. The complainant testified that on one occasion she had a sleep-over with three friends at her grandmother's apartment. She said that appellant called the girls away from the kitchen one by one into a room where he was alone with each of them. The complainant claimed that her other uncle was not at the apartment that night. According to the complainant, her grandmother was not present when appellant called the girls away one at a time. She claimed appellant was taking care of her at the time, but she also said that her grandmother saw the girls that night. The complainant's mother explained that she allowed the complainant to live at her mother's apartment when she was six to seven years old because at the time she was working nights and could not afford child care. The mother's grandmother, who has Alzheimer's disease, and uncle, who is schizophrenic and suffers from seizures, were also living at the apartment. Appellant is the mother's brother. Before the mother found out what had happened between appellant and her daughter, the mother had a good relationship with him and allowed her daughter to be around him on a regular basis. As far as she knew, the complainant loved appellant. According to the complainant's mother, the complainant started having behavioral problems in December 2002, when the complainant was in second grade and living with her. At school, the complainant dawdled in doing her assignments and started wetting her pants. She told her mother that she was waiting to the last minute to use the restroom and that she was scared to use the restroom by herself. For a time, the complainant's mother disciplined her for wetting her pants, but eventually she began to suspect something else was wrong. In February 2003, the complainant's mother asked her if anyone was "messing with" her or "touching" her. The complainant got scared and then became silent. She talked with her mother and then burst out crying. Afterward, she used her dolls to show her mother what had happened to her. At that time, the mother did not call the police, but she did take the complainant to Children's Medical Center for a physical examination. Later, she took the complainant to the Children's Advocacy Center, where the complainant was interviewed. When the trial date got closer, the complainant started wetting her bed and wetting her pants at school again. The complainant's mother stated that she took her to a doctor for a urinalysis, but the doctor found nothing physically wrong with her. The mother said that, to her knowledge, the complainant was not wetting the bed when she lived with her grandmother. The complainant's second-grade teacher testified that the complainant had a "tough year" with discipline, "behavior issues," and following directions. She stated that the complainant spent a lot of time in the nurse's office. The teacher felt that the complainant had been trying to get attention through her naughty behavior. She explained that it is extremely unusual for a second — grader to wet her pants. The complainant started doing it "constantly" from the beginning of the school year. The school nurse stated that the complainant's first incident of wetting her pants was September 17, 2002. She saw the school nurse for that problem twenty-three times throughout the school year. The complainant told her teacher she was scared to go the restroom. She never told her appellant had sexually assaulted her. Tracy Harmon, a forensic interviewer at the Dallas Children's Advocacy Center, testified that she spoke with the complainant on March 13, 2003, without her mother present. Harmon stated that eventually the complainant was able to give her details of what had happened to her. At that point in the interview, she stopped looking at Harmon and tried to change the subject. Harmon persisted in the interview, and the complainant described what had happened. Toward the end of the interview, the complainant became upset because she had wet her pants. When the interview was through, Harmon referred the complainant to a therapist. Harmon did not testify about what the complainant told her in the interview. She stated that at some point after the interview, a warrant was issued for appellant's arrest. A pediatrician at Children's Medical Center testified that the complainant's examination there was normal. The pediatrician stated that a normal physical examination does not prove a child has not been sexually assaulted because a young girl's vaginal area heals very rapidly. The doctor also stated that a child's wetting herself is a strong indicator something traumatic, like sexual abuse, has happened to the child. A urine culture taken at the examination came back negative; the complainant did not have an infection or anything wrong with her bladder. The complainant's therapist, Dr. Patricia Favre, also testified for the State. Since she had been referred to therapy by Harmon, the complainant had seen Favre once a week for more than a year. Favre said that the complainant did not tell her what had happened at her grandmother's apartment until she had seen Favre for approximately six sessions. Without defense objection, Favre testified that the complainant told her that she was scared of appellant and that "it happened a lot. It happened at daytime, at nighttime, it happened in every room practically of that house. . . ." When the prosecutor asked that she recount what the complainant had specifically told her, Favre then testified, "That he touched her breasts with his mouth. That he touched her bottom with his hand and that he put his penis inside her vagina and that his goo — these are her words — came out, it was yellow-white looking. . . ." When Favre attempted to say what appellant had told the complainant, defense counsel objected to the "line of testimony" as being hearsay. The prosecutor claimed the testimony qualified as "an exception to the hearsay rule," and the trial court overruled the objection. Favre then testified that the complainant said, ". . . her uncle had told her that she had urinated on herself when the goo came out, but she said she knew she hadn't done that so she knew that he was lying." Favre testified that it is common for children who have had severe trauma to wet themselves. The complainant had the most severe case of bed wetting Favre had ever seen in her time at the Children's Advocacy Center. She explained that it is otherwise "very unusual" for a seven-year-old child, without a known medical condition, to wet herself. Favre stated that the complainant had improved dramatically in the area of wetting herself and did not have the problem anymore. The complainant's grandmother testified for the defentse. According to her, the complainant started wetting herself in kindergarten and the problem continued when the complainant was in first grade. She claimed that when the complainant was living with her, she used to refuse to visit her parents on the weekends. After she returned from the visits, the grandmother claimed, the complainant had nightmares. The grandmother claimed she brought the complainant to Children's Medical Center when she was four years old because of her nightmares. According to the complainant's grandmother, appellant never lived with her, but he kept clothing at her apartment so he could change there while he was living at various homeless shelters. She admitted that there were times appellant slept at her neighbor's house when the complainant was living with her. She also admitted that appellant and the complainant were sometimes together at her apartment and that he took her places on occasion. The grandmother testified that the complainant was allowed to have several friends spend the night with her for her seventh birthday. That night, according to the grandmother, appellant was not at the apartment. The grandmother claimed she never left the girls alone. The grandmother believed appellant never sexually assaulted the complainant. She admitted that the summer before the complainant went into second grade, she left to play bingo in Oklahoma every other Friday. The grandmother testified that the complainant's great-uncle who lives with her is "retired." The grandmother clarified that the uncle is actually disabled and drawing Social Security. She claimed a "speaking disorder" is "all that is wrong with him." She admitted, however, that the great-uncle has seizures and takes medications. The complainant's great-uncle also testified for the defense. When asked if he ever saw appellant sexually assault the complainant during the times she said he was present, the great-uncle testified, "I didn't see anything. I didn't see nothing. I didn't see her. I didn't see. I didn't see. I didn't see. . . ." When defense counsel asked the uncle if he watched the complainant or if someone else watched her, he responded, "She with my mother. My mother, my own mother, my grandmother — her grandmother, my mother." Defense counsel asked the uncle if there was any time that the complainant was left alone with appellant. He replied, "Yes, I ain't seen — I ain't seen — I ain't seen nothing. No, not seen it. Seen nothing. She get mad. She get mad." The great-uncle testified that he has not worked since he was eighteen years old because he got "[r]eal sick" and had a seizure and a heart attack. Discussion
In his first and second issues, appellant complains the evidence against him is legally and factually insufficient to support his conviction for aggravated sexual assault. He specifically argues the evidence fails to show his sexual organ contacted or penetrated the complainant's sexual organ. 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). 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). 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.). Here, the complainant unequivocally testified that appellant's "private" had touched her "private." With diagrams at trial, she indicated that by "private" she meant male or female genitals. She said the skin of appellant's private part touched the skin of her private part. In addition, her counselor, Favre, testified that the complainant told her appellant had put his penis in her vagina. Viewing all the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to show that appellant's sexual organ, at a minimum, contacted the complainant's sexual organ. We resolve appellant's first two issues against him. In appellant's third issue, he complains the trial court erred in determining that Tracy Harmon was the outcry witness. Appellant contends that Harmon did not qualify as an outcry witness under article 38.072 of the Texas Code of Criminal Procedure because the evidence showed the complainant's mother was the first person she told about what had happened between appellant and her. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Appellant alleges he was harmed by the court's decision to allow Tracy Harmon to be the outcry witness because Harmon interviewed the complainant for the police and because her experience as a trained investigator would make her more believable than the complainant's mother. Appellant does not point out what portion of Harmon's testimony constituted harmful outcry evidence. Harmon never stated that the complainant had told her appellant sexually assaulted her. She merely testified that the complainant was upset to the point of wetting herself during the interview, that she referred the complainant to therapy at the conclusion of the interview, and that sometime after her interview with the complainant, a warrant was issued for appellant's arrest. Given the nature of the complainant's graphic description on the stand of appellant's sexual assaults, even if Harmon's testimony contained inadmissible hearsay, appellant was not harmed by the testimony. See Tex.R.App.P. 44.2(b). We resolve appellant's third issue against him. We affirm the trial court's judgment.