11th Court of Appeals
Eastland, Texas
Opinion
William Roe Isbell
Appellant
Vs. No. 11-01-00183-CR B Appeal from Taylor County
State of Texas
Appellee
The jury found appellant guilty of indecency with a child and assessed his punishment at confinement for 5 years. Appellant appeals. We affirm.
Appellant urges in his first point of error that the evidence was legally insufficient to support the conviction. In his second point, he maintains that the evidence was factually insufficient to support the conviction.
In order to determine if the evidence is legally sufficient, this court must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).
The victim, who was 8 years old at the time of trial, testified that she was 5 years old at the time of the offense. She stated that, while she and her little sister were staying with him, appellant forced them to watch nasty movies. The victim stated that appellant, who was not wearing clothes, put his legs up in the air and forced the victim=s little sister to lick him between his legs near his Aboy part.@ The victim testified that she saw Awhite stuff@ come out of his boy part. She stated that it was wet and that appellant tried to put it on her.
TEX. PENAL CODE ANN. ' 21.11(a)(2) (Vernon Supp. 2002) provides that a person commits the offense of indecency with a child if, with a child younger than 17 years who is Anot [his] spouse,@ the person exposes any part of his genitals, knowing the child is present, with the intent to arouse or gratify the sexual desire of any person.
Appellant argues under his first point that the State failed to prove that the victim was not appellant=s spouse. The State did not ask the 5-year-old victim if she was the spouse of appellant. However, the circumstantial evidence clearly proved that the victim was not appellant=s spouse. The victim called appellant AUncle Roe,@ and she had known appellant since she was born. The victim=s mother testified that she had known appellant for two or three years before the date of the offense. She stated that she had a close relationship with appellant and considered him a Abrother.@ At the time of the offense, appellant was babysitting her children while she was at work. The jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Ates v. State, 21 S.W.3d 384, 389 (Tex.App. - Tyler 2000, no pet=n); Robertson v. State, 21 S.W.3d 554 (Tex.App. - Waco 2000, no pet=n). The standard of review on appeal is the same for both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Cr.App.1995). The evidence was legally sufficient to support the jury=s finding that the victim was not appellant=s spouse. Appellant=s first point is overruled.
In order to determine if the evidence is factually insufficient, we must apply the standard set out in Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). We view all the evidence without the prism of in the light most favorable to the prosecution (viewing in a neutral light), and we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The court in Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000), stated:
We hold, therefore, that our opinion in Clewis is to be read as adopting the complete civil factual sufficiency formulation. Borrowing in part from Justice Vance=s concurring opinion in Mata v. State, 939 S.W.2d 719, 729 (Tex.App. - Waco 1997, no pet.), the complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
Appellant argues that the evidence used by the State to establish the elements of the crime was so weak as to be factually insufficient and undermined confidence in the jury=s determination. Appellant points out some inconsistencies in the victim=s testimony. Appellant also maintains that the contrary proof presented by appellant greatly outweighed that presented by the State. We disagree with appellant=s contentions.
Betty Ribordy, who worked for the police department as Director of the Child Advocacy Center, testified that she interviewed the victim on two different occasions. Ribordy=s testimony as to what the victim told her clearly shows that appellant committed the offense. There is some difference between what the victim first told Ribordy and what the victim later told Ribordy approximately one year and eight months later. Ribordy stated that she had interviewed about 500 young children between the ages of 4 and 8 who had been sexually abused and that it was not unusual for the victims to share a lot of information at first (tentative disclosure) and later say that they had Aforgotten@ some of the facts surrounding the offense. Appellant put on witnesses who stated that, during the trial, the victim stated in the hall before she walked into the courtroom: AI play court all the time.@ After reviewing all the evidence, we hold that the evidence is factually sufficient to support the verdict. Appellant=s second point is overruled.
The judgment of the trial court is affirmed.
AUSTIN McCLOUD
SENIOR JUSTICE
February 21, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Wright, J., and
McCall, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.