Opinion issued May 11, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01–05–00434–CR
ERIC D. MCCOVERY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 953373
MEMORANDUM OPINION
A jury convicted Eric D. McCovery, appellant, of aggravated sexual assault, and assessed punishment at 30 years in prison. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2005). On appeal, appellant argues that (1) the evidence was factually insufficient to support the conviction, (2) the evidence was legally insufficient to support the conviction, (3) the trial court erred in allowing unreliable scientific expert testimony, (3) the trial court erred in allowing extraneous offenses or other bad acts, and (4) the trial court erred in allowing the State to make improper jury arguments during the punishment proceeding of the trial.
We affirm.
Background
On April 13, 2003, D.C., the complainant, spent the night at the apartment of Marilyn Doughty together with Doughty and three other individuals. D.C. was 13 at the time. Doughty slept on the couch in the living room as D.C. and three other people slept in the middle room of the three-bedroom apartment. Appellant arrived at the apartment to sleep between 2:00 a.m. and 3:00 a.m.
While sleeping on the floor, D.C. awoke when he felt someone’s mouth on his penis. Because the room was dark, he was unable to see whose mouth was touching him. D.C. felt the top of the person’s head, which felt curly. Appellant had curly hair at the time. D.C. ejaculated on his boxer shorts. When the bedroom door opened, D.C. recognized the shape of appellant’s body as the person leaving the room. Afterwards, D.C. woke Doughty, telling her what had happened. D.C. told her that he did not know who touched him but that he thought it was appellant. The following evening, D.C. reported the incident to his mother, who notified the Pasadena Police Department.
Swabs and smear samples were collected from D.C., along with the underwear he had worn at the time of the incident. The swabs and smear samples did not reveal any DNA besides D.C.’s, but a discoloration was noticed on the underwear. Dr. Sujathat Yarlagadda conducted the DNA analysis on the collected samples. She compared her results to the buccal swabs obtained from appellant, who gave his voluntary consent to take a DNA sample. The results indicated that both D.C.’s and appellant’s DNA were found on the underwear. The sperm on the underwear belonged to D.C., and saliva was also present. DNA testing also revealed a possible third DNA donor on the underwear. Dr. Robert Benjamin, an associate professor at the University of North Texas, testified on behalf of the defense that the saliva found on the underwear did not conclusively belong to appellant.
D.C. testified at trial to the events that occurred on April 13, 2003. The date that he gave as his birthday was April 4, 1989, but the date that his mother gave as his birthday during her testimony as well as the date of birth on the Child Assessment Center forms was April 30, 1989. D.C. testified that he remembered telling people that he thought he was dreaming about being in bed with a woman before the incident.
Appellant testified that he slept at Doughty’s apartment on the night in question, and he entered the middle room where the four people were sleeping in order to get a blanket. He slept in Doughty’s bedroom and, before leaving at approximately 6:00 a.m. the same morning, he placed his blanket on D.C. before leaving the apartment. Appellant denied that his mouth made contact with D.C.’s penis.
During the punishment proceedings, N.S., a sixteen-year-old friend of the family, testified that a similar incident occurred between him and appellant at Doughty’s apartment. N.S. stated that, at the age of 13 while sleeping in the living room, he awoke to find appellant attempting to unzip his pants. When N.S. later confronted appellant, appellant responded that it was an accident.
Dr. Lawrence Thompson, Jr., the director of therapy psychological services at the Children’s Assessment Center, testified generally about the treatment given to both children that have been sexually abused and sexual offenders. Dr. Thompson specifically stated that no cure exists for sexual offenders and that the results and feelings from being abused could last for a victim’s entire life. Legal Insufficiency
In his second point of error, appellant argues that the evidence was legally insufficient to support a finding of guilt.
A. Standard of Review
In a legal sufficiency review, we review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact 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); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We give great deference to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The review for circumstantial evidence is the same as it is for review of cases in which direct evidence exists. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). Circumstantial evidence, by itself, may be enough to support the jury’s verdict. Id.
B. Analysis
A person commits aggravated sexual assault if that person “causes the sexual organ of a child to contact or penetrate the mouth . . . of another person, including the actor” and “the victim is younger than 14 years of age.” Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B).
Appellant argues that the evidence is legally insufficient to establish that he made contact with D.C. by placing his mouth on D.C.’s penis and that D.C. was younger than 14 years old at the time of the incident.
1. Contact
The evidence viewed in the light most favorable to the prosecution shows that D.C. testified to feeling someone’s mouth on his penis during the early morning hours of April 13, 2003. Although there were other people sleeping in the same room as D.C., D.C. felt the curly head of someone touching his penis, and he identified the shape of the body leaving the room after the act. D.C. identified appellant, whose hair was curly at the time. Moreover, appellant’s DNA was found on the underwear that D.C. was wearing that morning.
We hold that the testimony along with the DNA analysis from the underwear was legally sufficient for a rational jury to conclude that appellant caused his mouth to touch the penis of D.C.
2. Age
The evidence showing that D.C. was under 14, when viewed in the light most favorable to the prosecution, establishes that the event occurred on the morning of April 13, 2003. D.C.’s mother testified that D.C.’s birthday was April 30, 1989. Likewise, D.C.’s birthday is supported by the documents from the Child Assessment Center, which indicate that his birthday is April 30, 1989. We hold that a rational jury could have concluded that appellant was younger than 14 years of age at the time of the incident.
We overrule appellant’s second point of error.
Factual Insufficiency
In his first point of error, appellant argues that the evidence was factually insufficient to support a finding of guilty. Appellant suggests that the State’s use of scientific evidence to prove that appellant made contact with D.C. was not established beyond a reasonable doubt.
A. Standard of Review
In a factual sufficiency review, we review 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). The jury is the exclusive judge of the facts, the credibility of the facts, the credibility of the witnesses, and the weight to be given to the witness’s testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Conflict in the evidence is to be resolved by the jury. See Cain v. State, 958 S.W.2d 404, 408–409 (Tex. Crim. App. 1997). A jury decision is not manifestly unjust because the jury resolved conflicting views of evidence in favor of the state. Id. at 410. In conducting a factual sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Analysis
To support the State’s theory of contact, Dr. Yarlagadda testified to the results of the DNA analysis of the sexual assault kit compared to the samples taken from D.C. and from appellant. Dr. Yarlagadda determined that the discoloration on the underwear that D.C. wore at the time was the result of DNA contributed by D.C., appellant, and a possible third donor. One of the samples was D.C.’s sperm, and another sample was saliva.
In opposition, Dr. Benjamin, appellant’s medical expert, testified that the mixture of DNA could have been the result of overlay, which supports appellant’s theory that he placed a blanket on D.C. Although the defense did not conduct independent testing on the underwear or the samples taken from the sexual assault kit, Dr. Benjamin testified that, in his opinion, the Harris County Medical Examiner’s results did not conclusively prove that the saliva belonged to appellant.
The jury’s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at, 410. From the testimony and the test results adduced at trial, we hold that the evidence was factually sufficient to support the conviction. Although some conflicting evidence was presented, the contrary evidence was not so strong that the fact-finder could not have determined beyond a reasonable doubt that appellant placed his mouth on D.C.’s penis.
We overrule appellant’s first point of error.
Unreliable Scientific Expert Testimony
In his third point of error, appellant argues that the trial court erred in admitting into evidence unreliable scientific expert testimony. Appellant specifically questions the reliability of testimony given by Dr. Yarlagadda during the guilt-innocent phase and by Dr. Thompson during the punishment phase.
In order to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. A timely, specific objection is required to allow the trial court an opportunity to rule on the complaint and correct any error that may have occurred. Mosley v. State, 931 S.W.2d 670, 674 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). “[W]hen it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost.” Lankston v. State, 827 S.W.2d 907, 908 (Tex. Crim. App. 1992).
Appellant failed to object to Dr. Yarlagadda’s testimony and to Dr. Thompson’s testimony. Therefore, appellant waived these arguments.
We overrule appellant’s third point of error.Evidence of Extraneous Offenses
In his fourth point of error, appellant argues that the trial court erred in admitting into evidence extraneous offenses or other bad acts committed by appellant. Specifically, appellant contends that the State failed to include an act involving another minor, N.S., in any of its three “Notices of Intention to Use Extraneous Offenses and Prior Convictions.”
Even if the facts support a meritorious argument as to whether N.S. was included within the State’s intended witness list, appellant did not make a timely objection to the admission of the evidence or the testimony of N.S. See Tex. R. App. P. 33.1. Therefore, appellant’s complaint is waived.
We overrule appellant’s fourth point of error.
Improper Jury Instructions
In his fifth point of error, appellant contends that the trial court erred when it allowed the State to make improper closing arguments during the punishment proceedings that adversely affected Appellant’s constitutional rights.
Appellant did not object to the statements made during the State’s closing argument that form the basis of his fifth point of error. A timely objection is necessary to preserve error for appeal. Id. Therefore, appellant has waived his right to complain of the arguments on appeal. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (holding error not preserved without objection even for manifestly improper closing arguments).
We overrule appellant’s fifth point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Higley, and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).