Opinion
No. 05-03-01554-CR
Opinion issued August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F02-73310-PH. Affirmed.
OPINION
After a jury found appellant Denorris Woods guilty of aggravated sexual assault, appellant pleaded not true to allegations of two prior convictions for burglary of a building. The jury found the allegations to be true and assessed appellant's punishment at 40 years in the penitentiary. Appellant now appeals that sentence, raising only one issue: factual sufficiency of the evidence to support the aggravated sexual assault conviction. Concluding the evidence is factually sufficient, we affirm. The indictment in this case charged appellant with the primary offense of aggravated sexual assault. In relevant part, the indictment alleged that appellant on or about the 15th day of November, 2001, did "unlawfully then and there intentionally and knowingly cause the contact and penetration of the female sexual organ of [T.W.], a child, who was not then the spouse of the defendant, by an object, to-wit: the sexual organ of the defendant, and, at the time of the offense, the child was younger than 14 years of age." At the time of the offense, appellant was in his thirties and was the stepfather of the 11-year-old complainant. The complainant was present and testified at trial. In graphic detail, she testified to having been sexually assaulted by appellant over a sustained period of time. When they first met, complainant thought appellant was "cool." They would do things together and he gave her an allowance and bought her gifts. Appellant and her mother married in December of 2000. About a month after they all began living together as a family, appellant began sexually abusing the complainant. Appellant told the complainant he came to her for sex because her mother was "fooling around" and would not "do it"; however, the complainant also said it really started because he was attracted to her. The first sexual assault occurred when appellant and the complainant were alone, driving to her grandmother's house. Appellant first "touched" appellant while they were in the car. After she said she would not tell, appellant stopped the car in a dark, secluded spot, got out, began taking off his clothes, came around to the passenger side, and sexually assaulted the complainant. The complainant did not want to do it but did it anyway because she was scared of appellant and there was nobody there to help her. Thereafter, sexual intercourse with appellant continued in various places, almost on a daily basis. The complainant's mother had a drug problem and often left the house. Complainant was left to be the surrogate mother to her two siblings, a 7-year-old brother and a 5-year-old sister. Once her brother walked in on appellant and the complainant having sex. Both, however, were clothed, and the complainant pretended they were just wrestling because she did not want to make "no big scene." She wrote about these events in her diary, but lost the diary when they moved. She said appellant did not force her to do it; she did it because she was stupid. Once when they were having sex on the living room floor, she did ask appellant to stop. She did not tell anyone because she feared appellant. Appellant never used condoms; however, she never got pregnant nor contracted a sexually transmitted disease. Appellant also abused her by hitting and pushing her. The complainant had contemplated suicide. She had no reason to lie. She had never used drugs and was an A or B student. She felt bad about what happened and felt she should have done more to prevent it. She felt she was being used. She did know the difference between a lie and the truth. Only after the abuse stopped did the complainant tell several people. The complainant's 35-year-old mother testified she had a drug problem in 1999 and voluntarily went to Nexus for treatment. Her children were with her there during her three months as an inpatient. She is now clean and sober. In December of 2000 she married appellant. When she and appellant first married they lived with her mother. Her mother, however, gave them a deadline to move out of her house. Complainant's mother did not work when she first married appellant; however, in December of 2001 she went back to work. Appellant was very jealous, insecure and always wanted to have sex. Even though she did not work outside the home, she would often be gone from home for extended periods because of her drug problem, although she never sold drugs. She would sometimes take marijuana and cocaine together. She would often pawn items belonging to appellant just "to get back at him." She never came home and found anything out of the ordinary. Only once did she ever stay out "late, late." Appellant had a heavy sex drive and thought she was "messing with" Billy next door because he also used drugs. That was not true, however. She had seen appellant hit the complainant. The complainant looks older than she is. She knew the complainant took birth control pills and she was okay with that. She and appellant were married for less than a year. Early in 2003, after appellant had been out of her life for over a year, the complainant told her mother about the sexual activity between appellant and the complainant. Complainant's mother was surprised, upset, and angry when she learned of it. She was surprised about the complainant's sexual activity because the complainant was a "tomboy" and loved sports. Upon learning of the offense, she immediately called the police. Only after Detective Fite's interview with the complainant did she learn about the complainant's sexual encounters with boys her own age. The complainant got counseling at the Dallas Children's Advocacy Center (DCAC); the complainant loved going to counseling. Complainant's mother applied for money for therapy for her daughter through the victim's compensation fund, but she has not received any money yet. Medicaid paid for the counseling. Even though the complainant told the therapist she had contemplated suicide, she told her mother she would never hurt herself. Complainant's mother wrote one letter to appellant to let him know she knew about the offense. Appellant wrote back and denied everything. Appellant also wrote the complainant one letter. All of the letters were thrown away. Complainant's mother has always had a good relationship with the complainant and feels it is even stronger now that appellant is out of their lives. She would not have blamed the complainant if she had told her about the sexual activity with appellant, but would have been mad at her about her sexual activity with the other boys. Laurie Havran, a pediatrician, testified that a physical examination of the complainant on October 30, 2002 revealed she was a healthy, though overweight, teenager. A pelvic examination revealed she was fully sexually developed and, although there was no evidence of sexually transmitted disease, she was obviously sexually active. Through Havran, the complainant's medical records were introduced. On cross-examination, Havran said the number of sexual partners a young child has had is medically significant; however, because the complainant told her the sexual abuse was already being investigated by the courts, and she was in counseling, Havran did not ask further questions about it. The complainant's 24-year-old cousin, who was as close as a sister to the complainant, testified they spoke on the telephone regularly. She learned of this offense during a telephone call in July of 2002. When the complainant told her about it, because of the seriousness of the matter, she set up a conference call among the complainant, herself, and the complainant's aunt, with whom the complainant was also close. She sensed there was something the complainant wanted to tell her on the telephone but it took several conversations before she was ready to. At first, when the complainant began to talk about the events, she was giggling and laughing, but then was more serious until almost in tears. They all were. The complainant's 26-year-old aunt who participated in the conference call testified she was unmarried but had one son. She was very close to the complainant, and talked to her after every report card or when the complainant was in trouble. She saw the complainant every other weekend and she knew about the complainant's mother's drug problem. The complainant was very mature, not only physically, but also "up here" (presumably mentally). The complainant was great with kids and had practically raised her siblings. She had no reason before those telephone calls to believe the complainant was sexually active. After the conference call about the sexual abuse, they talked to the complainant's mother about it. The complainant had a good reputation for being a truthful person. Complainant's aunt did not know appellant well. Police detective Eldon Fite testified he was a 20-year veteran with the Dallas police department and had spent the last six years in the child abuse unit. He had received specialized training in conducting age appropriate interviews with children. He had four children, ages 20, 17, 12, and 8. Fite interviewed the then 12-year-old complainant in August of 2002. She looked sixteen and talking to her was like talking to an eighteen- or twenty-year-old; she was "street-wise." The complainant told him of three sexual contacts with appellant, but said the sexual activity happened more than five times. The complainant did not tell him about her mother's new boyfriend performing oral sex on her; however, she told him there was one instance of oral sex with appellant in March. The complainant described being forcibly raped by appellant in the car near her grandmother's house. Fite did not find it strange that after the first sexual assault, the complainant went on to her grandmother's house and did not tell anyone. There was nothing about the dress or demeanor of the complainant that made him think she was a troubled teenager. Because of a delayed outcry, no DNA evidence was available. Fite did not try to elicit every detail from the victim. The complainant was pretty detailed and graphic in her description of what had happened to her. In Fite's opinion, teenagers are more likely to fabricate than younger children. Fite also spoke to the complainant's mother. A videotape of Fite's interview with the complainant was admitted into evidence, shown to the jury, and this court has reviewed that videotape as part of the record in this appeal. The complainant's mother took her to a therapist, Jennifer Goldberg, at the DCAC. Goldberg had a B.A. degree in psychology and a M.A. degree in counseling. She had over 1,000 hours of the required 2,000 hours to get her permanent license. Goldberg had worked at the DCAC for two years, and on January 17, 2003, she conducted the first of six therapy sessions with the complainant, who she described as being mature for her age. The complainant described to Goldberg "violent sexual encounters" with appellant over a sustained period of time. She suffered from depression and struggled with suicidal thoughts. Goldberg thought the inconsistencies in the complainant's rendition of the facts was normal and she saw no "red flags" to indicate she was being untruthful. The last session was on March 15, 2003. Goldberg believed continuing therapy was a good idea for the complainant. Goldberg discussed how sexual abusers often "groom" their victims by making them think they are special in various ways. Victims often feel humiliated or embarrassed. They often "test the waters" to see if it is safe to tell someone about the abuse. It enhances their ability to tell someone if they are met with support and belief. If there is a close relationship between the victim and the abuser, it is more difficult for a child to tell. The complainant told her she did not need medicine because she was not "crazy." The complainant knew a lot of people who had been raped because that was pretty common in the environment in which she lived. In fact, a friend of hers had been raped just before the session. Goldberg did not take complainant's family history and did not know her mother was a crack addict for a period of time. Goldberg did not find the complainant's inconsistencies about the frequency of the sexual activity to be significant. Goldberg was not told about the complainant having oral sex with her mother's new boyfriend. Goldberg's experience as a therapist had been that children do not make false allegations to get more attention. Goldberg did not know much about the complainant's mother, although she did meet with her. However, if the complainant thought her mother already knew about the sexual abuse, the complainant would be less likely to tell her mother about it. The complainant told Goldberg she thought her mother had seen appellant "touching" her on one occasion and she was glad because she thought her mother would stop it. In Goldberg's opinion, the complainant functioned as a 12-year-old but projected an adult persona, perhaps as a protection. Based on what Goldberg knew of the complainant, she would be qualified to adopt that persona. Sometimes perpetrators treat their victims as a "girlfriend" to get back at another female. Goldberg had no notes, however, that appellant "groomed" the complainant or treated her as a "girlfriend." As a result of her sessions with the complainant, Goldberg concluded the complainant lacked trust in others, suffered from depression, was promiscuous in her behavior, and had suicidal thoughts. The complainant told Goldberg she had nightmares and flashbacks of the sexual abuse, which happened "on and off almost every day for two years." Nightmares, flashbacks, suicidal thoughts and promiscuous behavior were consistent with the complainant's account of the events. Goldberg admitted that children sometimes seek attention and that making a claim of sex abuse sometimes gets a child attention. Appellant's mother testified that appellant and the complainant's mother were married at her house. She did not approve of the marriage and did not think the complainant's mother was the right "girl" for appellant because she was "doing drugs." She had known the complainant for some time and knew her to be untruthful. Appellant's mother had not seen the complainant for about two years. Appellant's landlord at the house where the offense occurred testified that appellant always paid the rent. When the landlord would go to the house to collect the rent, the oldest child (the complainant) sometimes answered the door. She was not shy, and bossed the other kids. The complainant would tell other people what to do and she did not seem to be afraid of appellant. Appellant was a good father, paid the rent, and was good to the kids. Factual Insufficiency The appellate standard of review for factual insufficiency was first established in Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996). Clewis requires an appellate court to review all of the evidence neutrally without the prism of "the light most favorable to the prosecution." Id. at 129. Since Clewis, the court of criminal appeals has attempted to clarify or modify the Clewis standard in a number of opinions, including Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997), Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000), Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App. 2001), and Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex.Crim.App. 2003). The most recent pronouncement by the court of criminal appeals on the factual sufficiency standard of review is found in Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Crim.App. Apr. 21, 2004). Consequently, we have analyzed the evidence in this case applying the Zuniga standard. Zuniga requires an appellate court to analyze all of the evidence in a neutral light in determining the ultimate issue: whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See id. 2004 WL 840786, at *7. Appellant argues the evidence is factually insufficient for two reasons: the proof of appellant's guilt is obviously weak; and the proof of guilt is greatly outweighed by contrary proof. Appellant contends the complainant's details about the offense were "vague and contradictory" and she probably made them up. As a basis for his conclusion, appellant points generally to the following: inconsistencies and contradictions in the complainant's testimony about the number of times she had sex with appellant; with whom she first had sex; whether she was "forced" or was compliant; and where the events happened. Appellant also points to inconsistencies between the complainant's testimony and her mother's testimony, specifically about who the complainant told about the sexual abuse, and when the complainant's mother learned of the complainant's having sex with boys her own age. Additionally, appellant argues other evidence shows the weakness of the State's proof of guilt and undermines the complainant's credibility, specifically the maturity and appearance of the complainant, her "street" language used in describing the sexual encounters, her failure to scream during the first sexual encounter in the car, her not becoming pregnant even though she said the sexual abuse went on for "almost two years," that appellant and her mother were married for less than a year, the complainant's demeanor of giggling and laughing when telling of the abuse, and her delay in the outcry. Appellant also suggests that her mother's concealment of the complainant having oral sex with her mother's new boyfriend and appellant's mother's testimony that, in her opinion, the complainant was untruthful also undermine the complainant's credibility. We disagree. It is the jury's duty to resolve conflicts in the evidence and to decide the weight and credibility of the evidence. See Cain, 958 S.W.2d at 408. When the evidence is conflicting, the jury's verdict is generally regarded as conclusive. See id. at 410. A jury's verdict is not manifestly unjust or clearly wrong merely because the jury resolved conflicting views of the evidence in favor of the State. See id. Having reviewed all the evidence in a neutral light, and mindful of the State's burden of proof-"beyond a reasonable doubt"-as set out in Zuniga, we conclude the evidence is factually sufficient to support the conviction. We, therefore, affirm.
See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2003); Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003).
Although she was aware that another adult male in her life had oral sex with the complainant after this offense, she did not report it to the police because he had left and she did not know where he was.