|
|
|
|
Opinion filed August 14, 2008
In The
Eleventh Court of Appeals
____________
No. 11-07-00234-CR
__________
MICHAEL RANY PIPKIN, JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. CR-06-20,920
M E M O R A N D U M O P I N I O N
The jury convicted Michael Rany Pipkin, Jr. of sexual assault of a child, found the enhancement allegation to be true, and assessed his punishment at confinement for life. We affirm.
In his first two issues on appeal, appellant contends that the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues that his confession was not sufficiently corroborated.
In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).
To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
When the defendant=s confession is admitted into evidence, the confession alone is not sufficient to support a conviction. Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000). There must be some other evidence showing that a crime has been committed. Id. However, this corroborating evidence does not have to be sufficient by itself to establish the offense. Id.
Appellant=s statement was introduced into evidence. Appellant stated that he had known the victim for about two months, that the victim had Asnuck out to go with@ another boy and appellant, that the victim told appellant that he wanted to run away to California, that he had told the victim he could spend the night in appellant=s travel trailer, and that he had told the victim that he would help the victim with his plans to run away. Appellant further stated that he had anal intercourse with the victim, that the victim had consented, that the victim later changed his mind about running away, and that the victim had agreed not to discuss the anal intercourse and agreed that Ait wasn=t going to happen again.@
Texas Ranger David Hullum testified that he investigated the case. The victim was a fourteen-year-old boy. The victim was Asomewhat intellectually challenged@ and Adefinitely socially challenged.@ The victim had made an outcry to the sixteen-year-old boy who was with appellant. Ranger Hullum prepared a photo lineup that was presented to the victim. An identification was made, and Ranger Hullum contacted appellant. Appellant gave his statement to Ranger Hullum. Ranger Hullum testified that, based on his experience and his investigation, the anal intercourse was not an Aaccident@ and was an intentional and knowing act. Ranger Hullum testified that the victim was not old enough to consent to sexual activity under Texas law. Ranger Hullum further testified that appellant=s statements that the intercourse was consensual, that the intercourse was the victim=s idea, and that the victim asked appellant for money were all inconsistent with his investigation. Ranger Hullum explained that a medical examination had not been conducted because it likely would not have revealed anything and would have further traumatized the victim.
The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court reviews the factfinder=s weighing of the evidence and cannot substitute its judgment for that of the factfinder. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We are required to give due deference to the factfinder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). This court has the authority to disagree with the factfinder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.
After reviewing the record in the light most favorable to the verdict, we find that the evidence is legally sufficient. A rational jury could have determined that appellant committed the offense. Likewise, after reviewing the evidence in a neutral light, we find that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. The first two issues are overruled.
In his third issue, appellant argues that the State made impermissible statements during its closing argument. Appellant contends that these arguments shifted the burden from the State to the jury itself. We disagree.
The State summarized the evidence (including the lack of any medical evidence) and stated that, if the jury required medical evidence of any anal tear, it should inform the State either by its verdict or after trial by telling the State that medical evidence should have been admitted. No objection was made to the State=s argument. The State continued to summarize the evidence telling the jury that the evidence presented established that appellant committed the offense.
Proper jury argument includes summation of the evidence presented at trial, reasonable deductions drawn from that evidence, answers to the opposing counsel=s argument, and pleas for law enforcement. Jackson, 17 S.W.3d at 673. An argument that is manifestly improper or injects new, harmful facts into the case is reversible error. Id.
The State=s argument was within the boundaries for permissible jury argument and did not inject any new, harmful facts into the case. Moreover, appellant=s argument has not been preserved for appellate review. Tex. R. App. P. 33.1. The third issue is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
August 14, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.