in Re Gernorris Wayne Dixon, Relator

NO. 07-07-0460-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 7, 2007

                                      _______________________________

IN RE GERNORRIS WAYNE DIXON

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Relator, Gernorris Wayne Dixon, filed his Application for Writ of Mandamus on November 9, 2007 contending that the trial court denied him the opportunity to present evidence of allegations of prosecutorial misconduct and ineffective assistance of counsel. Further, Dixon contends that the trial court failed to issue a finding of facts and conclusions of law in the denial of his “First Writ of Habeas Corpus.” However, Dixon did not include in an appendix to his application a “certified or sworn copy of any order complained of, or any other document showing the matter complained of.” Tex. R. App. P. 52.3(j)(A). Therefore, it is unknown whether the trial court was aware of Dixon’s requests.

          Additionally, Dixon did not pay the filing fee required under Rule 5 of the Texas Rules of Appellate Procedure. By letter from this Court dated November 13, 2007, we advised Dixon that the “filing fee in the amount of $125.00 did not accompany the captioned original proceeding. Unless the filing fee is paid by Monday, November 26, 2007, this proceeding will be subject to dismissal.” Tex. R. App. P. 5. Dixon has not paid the fee as directed nor has he filed an affidavit of indigence. See Tex. R. App. P. 20.1.

          Accordingly, we deny Dixon’s petition. See In re Chavez, 62 S.W.3d 225 (Tex.App.–Amarillo 2001, orig. proceeding).

 

 

                                                                           Mackey K. Hancock

                                                                                      Justice

during the initial forensic interview and equivocated on many answers.

The State asked for a recess and moved to show a videotape of the forensic interview to illustrate D.A.'s prior inconsistent statements. After entertaining numerous objections by defense counsel, the trial court ruled that any statements denied by D.A. could be impeached by inconsistent statements made on the videotape. Otherwise, the trial court sustained defense counsel's objections and gave the jury a limiting instruction that the videotape was for impeachment only and could not be used as proof of the elements of the offense.

D.A.'s credibility was impeached at trial. Appellant maintains that D.A.'s prior inconsistent and unsworn statements were the only evidence supporting the accusations and without them, his conviction cannot stand. We disagree.

Appellant was indicted for intentionally or knowingly causing digital penetration of D.A.'s sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2003). When sufficiency of the evidence is challenged, we must first determine whether legally sufficient evidence exists that would show beyond a reasonable doubt that the defendant committed each element of the offense. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). In so doing, we examine the verdict, after viewing 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App. 2001). This standard is the same in both direct and circumstantial evidence cases. Burden, 55 S.W.3d at 612-13. Substantive evidence with some probative value, even if erroneously admitted, is, by itself, sufficient to support the jury's verdict. Rodriquez, 819 S.W.2d at 873-74.

After conducting a legal sufficiency review under Jackson, we must determine, after considering all the evidence in a neutral light, whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the record clearly demonstrates a different result is appropriate, we must defer to the jury's determination. Johnson, 23 S.W.3d at 8.

D.A.'s mother testified that at first she believed her daughter had been molested by appellant. According to the outcry statement, appellant pulled D.A.'s panties to the side and touched and rubbed her private parts. Evidence of digital penetration and other details, however, was not allowed as part of the original outcry statement. Thus, we must look to other evidence to support appellant's conviction for aggravated sexual assault.

The family physician testified that D.A. told him appellant had inserted his fingers into her vagina. He determined that D.A.'s hymen was open about a centimeter, which was unusual for someone her age. The nurse who performed the sexual assault exam also testified that the condition of D.A.'s hymen was consistent with her allegations. There was medical certainty of digital penetration over a period of time. No objections were made to the testimony of either witness; however, an exception to the hearsay rule exists for medical diagnosis or treatment. See Tex. R. Evid. 803(4).

D.A.'s mother testified that, although she loved her daughter, she knew she told lies. She also testified that at an early age she discovered D.A. masturbating and believed that caused the damage to her hymen. The nurse, however, testified the damage could not have been caused by masturbating, bicycling, or a fall.

A counselor at the Crisis Center testified that according to his sexual inventory and checklist for assessment, he did not suspect D.A. concocted the accusations. The director at the Crisis Center testified that after D.A. recanted, she interviewed her again and found her demeanor to be tense and her responses to be "monotone and robotic."

A psychologist, who was not allowed to offer an opinion on this particular case, testified on motives for recanting. He explained that a child has a need to survive regardless of the home environment. The credibility of an accusation increases when spontaneous corrections are made during an interview rather than parroting or when sexual details are given that are not age appropriate. Additionally, a jury can choose to disbelieve recantation. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App. 1991) (en banc).

Regardless of D.A.'s impeachment, there is sufficient evidence to support appellant's conviction. Issues one and two are overruled.

Accordingly, the trial court's judgment is affirmed.

Don H. Reavis

Justice

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