COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DONALD JEFFERSON BRADSHAW, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-05-00022-CR Appeal from the 336th District Court of Grayson County, Texas (TC# 047697) |
O P I N I O N
This is an appeal from jury convictions for one count of aggravated sexual assault of a child and two counts of indecency with a child. The jury assessed punishment at thirty’ years imprisonment and $10,000 fine for the aggravated sexual assault of a child count, and ten years’ imprisonment and a $5,000 fine for the two counts of indecency with a child. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
In July of 2000, an investigation began concerning possible physical neglect of the complaining witness and her siblings in Denison, Texas. They resided at the Cardinal Inn in Denison. The investigation concerned Appellant, a female companion, and four children. The children were referred to their pediatrician, Dr. Jeannine Hatt. Based upon the doctor’s report that sexual abuse might be involved, a criminal investigation was commenced. Dr. Hatt testified that in July of 2000, she examined the complaining witness and found a deep notch in the complaining witness’s hymen which was strongly suggestive of a penetrating injury. Dr. Hatt referred the complaining witness to a sexual abuse nurse examiner. The results of that examination revealed that penetration of the hymen had occurred that was indicative of sexual assault.
Sue Jennings, the complaining witness’s therapist, testified that she first saw the complaining witness on September 21, 2000. The complaining witness was eight years old at the time.
Lisa Robinson, a foster-care parent, testified the complaining witness came to live with her in July of 2000. While driving in Robinson’s van, the complaining witness told her that her father had sexually abused her. Robinson took the complaining witness to CPS for a video interview.
Prior to the complaining witness’s testimony, the court examined her regarding her competence to testify. She stated that she was eleven years old at that time. Her testimony occurred on April 2, 2003. She was then sworn in.
The complaining witness testified that she had lived with her mother and father and brothers and sister at the motel room in Denison. She related that Appellant had touched her private parts both inside and out in the bathroom of the motel room. Appellant told her not to tell anyone. No one else was in the apartment. She had her clothes on.
The complaining witness’s brother stated that he witnessed Appellant touching the complaining witness in her private parts in the bathroom. He was trying to get her pants down and he got them off. He was hiding behind the door and the complaining witness did not see him.
The complaining witness’s mother testified on Appellant’s behalf. She stated that Appellant was the complaining witness’s biological father. She had been with Appellant for fourteen years. She testified that during this time, he had never been alone with the complaining witness. She stated that Appellant could not have committed the sexual acts without her knowledge, and she would have reported Appellant to the authorities if she knew of such acts. The witness testified that Appellant had never bathed the complaining witness. II. DISCUSSION
In Issue No. One, Appellant asserts that the evidence is legally and factually insufficient to support the conviction in Count One of the indictment. Specifically, Appellant argues that the State failed to prove the requisite age of the complaining witness. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).
Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref’d). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref’d); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref’d); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness’s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref’d).
In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder’s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Accordingly, we are authorized to set aside the jury’s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. If the evidence is factually insufficient, we remand to the trial court for a new trial. Id. at 133-35.
Appellant contends that the only evidence of the complaining witness’s age came out when the court conducted the competency examination and she stated she was eleven years old. Appellant reasons that as the complaining witness was not sworn until after she made that statement, there is insufficient competent evidence to show that the complaining witness was younger than fourteen years of age at the time of the offense.
We note initially that the therapist, Sue Jennnings, testified that on September 21, 2000, the complaining witness was eight years old. Notwithstanding that, Appellant made no objection to the fact the witness was not sworn. Under the rules of evidence, every witness shall be required, by oath or affirmation, to declare that the witness will testify truthfully. Tex. R. Evid. 603. The right to have a witness sworn can be waived. Beck v. State, 719 S.W.2d 205, 213 (Tex. Crim. App. 1986). By failing to object to unsworn testimony before the close of the trial, a defendant waives the right to have a witness sworn. Castillo v. State, 739 S.W.2d 280, 297 (Tex. Crim. App. 1987) (objection is too late if made after the verdict). Appellant has not preserved his contention on appeal.
Appellant also maintains that the court violated Texas Rule of Evidence 605 by testifying as a witness when he questioned the complaining witness concerning her competency. Rule 605 provides, “The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.” Tex. R. Evid. 605. Rule 605 is implicated when a trial judge steps down from the bench and becomes a witness. See Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992). This rule not only prohibits direct testimony by the judge but also testimony which “is the functional equivalent of witness testimony.” Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1076 (1991). In Hammond, the presiding judge had the clerk of the court contact the jurors to tell them that the defendant had absconded, but they were to report to the court the next morning notwithstanding the defendant’s disappearance. Id. In addressing this communication as a Rule 605 violation, the Court of Criminal Appeals held that the judge’s statement, while not in evidence at the time, served a judicial purpose unrelated to any desire to present unsworn testimony to the jurors. As such, Rule 605 was not violated. Id. at 746-47. We find that the complained-of questioning in the instant case served a judicial function in that it provided for the court to determine the competency of the witness and it was not a situation where the judge stepped down to testify.
As there was evidence properly before the jury indicating that the complaining witness was less than fourteen years of age at the time of the offense, we find that the evidence is legally and factually sufficient to support the conviction in Count One of the indictment. Issue No. One is overruled.
In Issue Nos. Two and Three, Appellant maintains that the evidence is legally and factually insufficient to support the conviction in Counts Two and Three because there is insufficient evidence demonstrating that Appellant acted with the intent to arouse or gratify his sexual desire.
Appellant argues the evidence is insufficient to show intent to arouse or gratify sexual desire because the record contains no evidence of an erection or repeated touching or other siblings being molested. Intent is a question of fact and may be inferred from the acts, words, and conduct of the accused. Wallace v. State, 52 S.W.3d 231, 234 (Tex. App.--El Paso 2001, no pet.) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)). Under section 21.11(a) of the Texas Penal Code, “the requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant’s conduct, his remarks and all surrounding circumstances.” McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) (citing Bowles v. State, 550 S.W.2d 84, 85-86 (Tex. Crim. App. 1977); Turner v. State, 600 S.W.2d 927 (Tex. Crim. App. 1980)); see Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984) (“The intent element in this case can only be proved by inferences from the evidence presented.”). No oral expression of intent is necessary, nor is visible evidence of sexual arousal required. McKenzie, 617 S.W.2d at 216.
In the present case, there is testimony that Appellant told his daughter not to tell anyone of the incident. Furthermore, there was testimony that Appellant had never bathed the complaining witness or had any pattern of caring for the complaining witness which might allow for some kind of accidental touching. Furthermore, there was testimony to the effect that the injury to the complaining witness’s hymen was indicative of sexual assault and not some accidental occurrence. Certainly, the evidence is legally sufficient to support the conviction.
Regarding the factual sufficiency of the evidence, we do not find that the testimony of the mother was so strong as to show that the State did not meet the beyond-a-reasonable-doubt standard. There were two witnesses to the incident, and the suggestion that Appellant was never in a situation where he was alone with his daughter was not particularly credible. We find the evidence is factually sufficient to support the conviction. Accordingly, Issue Nos. Two and Three are overruled in their entirety.
Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.
RICHARD BARAJAS, Chief Justice
August 31, 2006
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)