NO. 07-03-0109-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 2, 2004
______________________________
DIRK RALPH GORHAM, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 14,835-A; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
MEMORANDUM OPINION
Before QUINN and REAVIS and CAMPBELL, JJ.
Following appellant Dirk Ralph Gorham’s plea of not guilty, a jury convicted him of
two counts of aggravated sexual assault. The trial court then found the allegations in the
enhancement paragraphs of the indictment to be true and sentenced appellant to 40 years
confinement on each count, to be served concurrently. By his first issue, appellant
contends the evidence was legally and factually insufficient to sustain a verdict of guilty on
count one of the indictment.1 With his second issue, appellant asserts that “[a]n inordinate
amount of hearsay testimony was admitted over [his] objection without proper justification
for its admission being required by the court.“ We affirm.
On November 29, 2002, the victim, appellant’s twelve year old step-daughter, told
her friend Amanda that, earlier that morning, appellant had “touched her where he was not
supposed to.” Specifically, the victim said appellant had touched her chest and in between
her legs. According to the victim, after the incident, she had bled a little on her underwear.
Additionally, the victim relayed that, either on that day or a couple of days before, appellant
had taken her hand and put it on his penis, and that “he had stuck it [his penis] in her rear.”
The victim indicated that her stomach hurt as a result of the incident.
Immediately after her conversation with the victim, Amanda reported to her mother,
Susan, what the victim had told her. Within minutes Susan and Amanda went to the
victim’s house where they located the victim, who was babysitting her little brother. While
Amanda waited inside the house with the victim’s brother, Susan and the victim sat in
Susan’s car and talked. During the course of their hour long conversation, the victim
informed Susan that appellant had come into her room that morning and gotten in bed with
her. He then took her hand and put it on his penis. The victim went on to relate that
1
Because appellant does not contend that the error extends to his conviction under
count two, we will limit our review to the evidence regarding the offense charged in count
one.
2
appellant “had tried to put his thing in her butt.” In addition to that morning’s incident, the
victim also recalled an episode in which appellant had put his fingers inside her vagina
causing it to bleed. The victim asked Susan not to tell anyone about their conversation
because she wanted to tell her mother about the abuse first. Later that day, Susan
telephoned the victim, who indicated she had told her mother about the abuse.
Nevertheless, the victim asked Susan to continue to keep their conversation in confidence.
The victim repeated that request the next day. On December 1, 2002, however, Susan
reported the sexual assaults to the police.
Child Protective Services workers responded to the victim’s school on December
2, 2002, and transported her to the children’s advocacy center where she was interviewed.
During the videotaped interview, the victim denied that her step-father had ever touched
her inappropriately. Rather, she claimed that, in response to a dare by a friend, she had
lied to Amanda about the abuse. When the investigating officer confronted the victim
about the conflicts between her statement to the interviewer that day and the allegations
she made to Amanda and Susan on November 29, the victim maintained “that it was all
a truth or dare game.”
After the interview, the victim talked to Michele Gorday, a sexual assault nurse
examiner who performed an exam on the victim. During the history phase of the exam, the
victim explained to Gorday that she had, in fact, been abused by appellant. According to
the victim, she did not feel comfortable divulging that secret earlier because she did not
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know the interviewer or the detective, and “[t]hey had a video camera and a recorder on.”
The victim then confided that appellant had put her hand on his penis and tried to stick his
penis in her bottom. The victim explained that her mother had made her promise not to
tell anyone about the abuse. Apparently, her mother wanted to wait to discuss the matter
until her mother-in-law went home so as not to “hurt her [the mother-in-law].”
After Gorday completed taking a history from the victim, she conducted a sexual
assault exam. The exam revealed that the victim had suffered traumatic injuries to her
sexual organ, which, according to Gorday, were caused by “penetration of the vagina.”
The exam failed to reveal any trauma to the victim’s anus; however, Gorday testified at trial
that she finds such injuries “[v]ery rarely.” Because the anus is “a very accommodating
muscle,” it heals rapidly; thus, it is “not unusual to not find trauma.” Appellant was arrested
on December 6, 2002.
By his first issue, appellant maintains the evidence is legally and factually insufficient
to support his conviction as to count one. Specifically, he contends that “[a] full reading of
the testimony concerning Count One from those having direct knowledge of the night of
November 29, 2002, there can (sic) have been no credible opportunity for [him] to have
had access to [the victim] to commit the offense alleged.” We disagree. In reviewing the
legal sufficiency of the evidence to support a conviction, we view the evidence in the light
most favorable to the verdict, and ask whether a rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
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99 S. Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). In our review, we must evaluate all of
the evidence in the record, both direct and circumstantial, whether admissible or
inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 ( Tex.Cr.App. 1999), cert denied, 529
U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). This standard gives full play 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. Jackson, 44 U.S. at
319.
In reviewing the factual sufficiency, we examine all of the evidence neutrally and ask
whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to
indicate that a manifest injustice has occurred. See King v. State, 29 S.W.3d 556, 563
(Tex.Cr.App. 2000). We must, however, remain cognizant of the factfinder's role and
unique position–one the reviewing court is unable to occupy. See Johnson v. State, 23
S.W.3d 1, 9 (Tex.Cr.App. 2000). The jury determines the credibility of the witnesses and
may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461
(Tex.Cr.App. 1991). It is the jury that accepts or rejects reasonably equal competing
theories of a case. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Cr.App. 2001). Finally,
a proper factual sufficiency review must include a discussion of the most important and
relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99
S.W.3d 600, 603 (Tex.Cr.App. 2003).
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In support of the sufficiency challenges, appellant relies upon the victim’s continued
recantation of the sexual abuse allegations at trial and the testimony of his mother. At trial,
the victim asserted that, on the night before the offense, she had slept in her brother’s
room with him and her grandmother, appellant’s mother, because her puppy had “made
a mess” in her room. The grandmother’s testimony corroborated that story. It follows,
appellant claims, that because the victim was not alone in the room, he could not have
committed the assault without disturbing either the victim’s grandmother or brother.
Appellant’s assertion, however, fails to appreciate the jury’s authority to reconcile equally
competing theories of the case. Goodman, 66 S.W.3d at 287. Indeed, the jury was
entitled to disbelieve the victim’s trial testimony denying the abuse and to credit, instead
that of Amanda, Susan, and Gorday regarding the allegations of abuse she made to them
shortly after the offense. Likewise, it was within the province of the jury to discount the
grandmother’s testimony, especially in light of her potential bias as appellant’s mother.
See Chambers, 805 S.W.2d at 461.
Appellant also suggests that the only evidence adduced at trial establishing that he
caused the victim’s anus to contact his sexual organ was that presented by Susan. As
delineated above, however, Amanda and Gorday both testified that the victim told them
appellant attempted anal penetration on the morning of November 29, 2002.2 In short, the
State presented ample evidence to establish each of the elements of count one beyond
2
As discussed below, Amanda’s hearsay statements regarding what the victim told
her on the day of the offense were admitted without objection.
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a reasonable doubt. Similarly, we conclude that neither the inconsistencies in the
witnesses’ testimony nor the victim’s recantation rendered the proof of appellant’s guilt so
obviously weak or greatly outweighed by contrary proof as to undermine confidence in the
jury’s determination. See King, 29 S.W.3d at 563. Appellant’s first issue is overruled.
With his second issue, appellant complains the trial court abused its discretion in
admitting certain hearsay statements made by Amanda regarding what the victim told her
on the day of the offense about her stomach hurting. We disagree. To preserve for
appellate review error in the admission of evidence, a criminal defendant must make a
timely and reasonably specific objection. Tex. R. App. P. 33.1(a); Ramirez v. State, 74
S.W.3d 152, 154 (Tex.App.–Amarillo 2002, pet. ref’d). Furthermore, the objection at trial
must comport with the error complained of on appeal. Id. A general objection on the basis
of hearsay preserves nothing for review. Jones v. State, 843 S.W.2d 92, 98
(Tex.App.–Dallas 1992, pet. ref’d.). And, an objection made after the objectionable
testimony has been given is untimely; thus, any potential error is waived. Amuson v. State,
928 S.W.2d 601, 607 (Tex.App.–San Antonio 1996, pet. refd.). Finally, where a defendant
does not request a running objection, he is required to object each and every time the
objectionable evidence is offered. See Ethington v. State, 819 S.W.2d 854, 858
(Tex.Cr.App. 1991).
The record reveals that trial counsel made only three objections to the challenged
testimony; however, each of them were generic, nonspecific hearsay objections.
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Furthermore, appellant failed to object to other questions by the State concerning the same
subject matter and calling for hearsay responses. Neither did appellant request a running
objection to any evidence related to what the victim told Amanda about her stomach
hurting on the day of the offense. Thus, appellant has failed to preserve error regarding
the admission of that evidence. Issue two is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
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Dirk Ralph Gorham v. State
Combined Opinion