Opinion issued July 14, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00755-CR
JOHN JEZIERSKI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 881534
MEMORANDUM OPINION
Appellant, John Jesierski, pleaded not guilty to sexual assault. After finding him guilty as charged, a jury assessed his punishment at two years in prison. In four points of error, appellant argues that (1) the trial court improperly admitted an extraneous offense; (2) the evidence was legally and factually insufficient to show that the complainant was unaware of the assault; and (3) the State failed to prove venue by a preponderance of the evidence. We affirm.
Background
Appellant’s daughter and her friend, the complainant, were high school friends. They planned to go camping with appellant over spring break.
The night before the camping trip, appellant’s daughter and the complainant were staying at the complainant’s house. Appellant called the girls and said it would be easier if they stayed at his house for the night. Appellant drove over and picked them up and brought them back to his house at about 11:30 p.m. The complainant recalled getting sick, so appellant brought her some medicine. The complainant then fell asleep on appellant’s daughter’s bed. When she awoke, the complainant thought she had peed in her pants. Her shorts were pulled down to her knees, and appellant was facing her with one of his hands between her legs. The complainant’s shirt was up, exposing her stomach. The complainant testified that appellant had more than one of his fingers inside her vagina. The complainant also testified that she did not give appellant consent to put his fingers inside her. She further testified that she was not aware of what happened while she was sleeping. After the complainant told appellant to get off of her, appellant’s daughter woke up. The complainant then called her mother, Ms. R.
Ms. R. received a call from the complainant at 4:00 a.m. When she picked up the complainant, the complainant was hysterical, crying, and shaking. When the complainant told her mother that she had been sexually assaulted, Ms. R. flagged down a police officer.
Analysis
Admission of Extraneous Offense
In his first point of error, appellant argues that the trial court erroneously allowed the State to admit an extraneous offense. Specifically, appellant argues that, J.F.’s testimony, regarding a sexual assault, should not have been admitted.
After appellant testified in his own defense, the State cross-examined appellant about J.F., a friend of his daughter. Appellant objected to any extraneous offense regarding J.F. on the ground that the prejudice outweighed any probative value and was therefore prohibited by rule 403. The State argued that the testimony was admissible pursuant to Rule 404(b) to show appellant’s method of operation, plan, and motive. Defense counsel asked for a formal hearing outside the presence of the jury to hear J.F.’s testimony. Defense counsel again argued that the prejudice outweighed any probative value. The trial court denied appellant’s request for a hearing. Defense counsel argued that “if the prosecutor intends to show similar plan or preparation, my client has denied doing things in question, providing alcohol either to both the complainant and his extraneous complainant.” After hearing additional argument from both sides, the trial court allowed the testimony, stating “I think it’s admissible under 404(b), and I will allow it.” The jury charge included a 404(b) instruction that another offense could be considered only for determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Appellant objected at trial that the prejudice of the extraneous offense outweighed its probative value and that the extraneous offense was inadmissible to prove appellant’s preparation or plan. On appeal, appellant argues that the two crimes have critical differences and are not fingerprint crimes. Specifically, he argues that the crimes are different because (1) appellant never tried to kiss or place his tongue in the complainant’s ear, as he did in J.F.’s ear; (2) the complainant was 17 years of age, whereas J.F. was less than 17 years of age; and (3) J.F. was awake.
We conclude that evidence of the extraneous offense was properly admitted. While Rule 404(b) prohibits admission of “evidence of other crimes, wrongs, or acts,” to prove that a person acted in conformity with his character, extraneous offenses may be admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.; Montgomery v. State, 810 S.W.2d 372, 387–88 (Tex. Crim. App. 1991) (op. on reh’g). Evidence of extraneous acts may also be admissible to rebut defensive theories. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).
Appellant testified in his own defense. Appellant testified that he picked up the two girls at about 2:30 a.m. When they arrived at appellant’s house, he thought the girls were going to sleep. A short time later, he stated that he heard noises from his daughter’s room. When he walked into her room, appellant testified that he saw the complainant masturbating while his daughter was sleeping. Appellant denied ever putting his hands between the complainant’s legs or putting his fingers in her vagina. He also denied giving any alcohol to the complainant.
Appellant’s testimony raised a defensive theory that the complainant had fabricated the sexual assault. By raising this defensive theory, appellant opened the door for the State to offer rebuttal testimony regarding an extraneous offense, if the extraneous offense had common characteristics with the offense for which the appellant was on trial. See Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The trial court heard evidence that the extraneous offense had common traits to the charged offense, including (1) the plan was identical; (2) the assaults occurred in the same location; (3) both victims were friends of appellant’s daughter; and (4) alcohol was present in both assaults. Although appellant points out three differences between the charged offense and the extraneous offense, we conclude that these minor differences do not outweigh the similarities. Because extraneous acts may be admitted to rebut defensive theories when there are common traits between the charged offense and the extraneous offense, we conclude that the trial court did not abuse its discretion in admitting the extraneous act.
We overrule appellant’s first point of error.
Legal and Factual Sufficiency of the Evidence
In his second and third points of error, appellant argues that the evidence is legally and factually insufficient to show that the complainant was unaware that the sexual assault was occurring.
We review a legal sufficiency challenge by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder. Id.
In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)). The appellate court may not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
A person commits sexual assault if the person intentionally or knowingly causes the penetration of the female sexual organ of another person by any means without that person’s consent. Tex. Pen. Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2004-2005). Without the consent of another person means that “the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring.” Id. § 22.011(b)(5).
The evidence shows that the complainant fell asleep on appellant’s daughter’s bed. When she woke up, the complainant thought she had peed in her pants. The complainant’s shorts were pulled down to her knees, and appellant was facing her with one of his hands between her legs. The complainant testified that appellant had more than one of his fingers inside her vagina. The complainant testified that she did not give appellant consent to put his fingers inside her. She also testified that she was not aware of what appellant did to her while she was sleeping. We conclude that this evidence is legally sufficient to support the verdict.
Under his factual sufficiency argument, appellant provides no additional argument to show why the evidence is factually insufficient, other than to state that “The State failed to prove that Appellant knew there was no consent from the Complainant in its case in chief.” After considering all the evidence, we conclude the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, or that the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). We hold that the evidence is factually sufficient to support the verdict.
We overrule appellant’s second and third points of error.
Venue
In his fourth point of error, appellant argues that the State failed to prove venue.
Venue is proper in the county in which a sexual offense is alleged to have taken place. Tex. Code Crim. Proc. Ann. art. 13.15 (Vernon 2005). The burden of proof is on the State to establish proper venue by a preponderance of the evidence. Id. art. 13.17 (Vernon 2005). “Evidence is sufficient to establish venue if ‘from the evidence the jury may reasonably conclude that the offense was committed in the county alleged.’” Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (quoting Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964)). “[F]ailure to prove venue in the county of prosecution is reversible error.” Black v. State, 645 S.W.2d 789, 791 (Tex. Crim. App. 1983).
Here, Ms. R. picked up the complainant at appellant’s house. As they drove back home, Ms. R. flagged down a police officer. Officer Stanley testified that he was flagged down by the complainant’s mother in Harris County early in the morning. He stated that he was told the sexual assault occurred at 14606 Oak Chase, which is in Harris County. Based on this evidence, we conclude that the State proved venue by a preponderance of the evidence.
We overrule appellant’s fourth point of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).