NO. 12-06–00394-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES CLAYTON ENGLAND, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
James Clayton England appeals his conviction for aggravated sexual assault. In three issues, Appellant argues that the evidence was legally and factually insufficient and that the trial court erred in admitting evidence of extraneous misconduct. We affirm.
Background
According to the evidence, Appellant sexually assaulted his daughter when she was a young girl. A Smith County grand jury indicted Appellant for one count of aggravated sexual assault. Appellant pleaded not guilty, and a jury trial was held. The jury found him guilty and assessed punishment at life imprisonment and a fine of $10,000. This appeal followed.
Sufficiency of the Evidence
In his first and second issues, Appellant argues that the evidence was legally and factually insufficient to support the conviction. Specifically, Appellant argues that the evidence was legally insufficient to prove that he penetrated the complaining witness’s sexual organ or mouth with his own sexual organ. Further, he argues that the evidence is factually insufficient because the complaining witness lacked credibility and gave testimony that was inconsistent with her pretrial statements.
Standards of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury’s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia standard. See Clewis, 922 S.W.2d at 134. We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict. See Clewis, 922 S.W.2d at 133. But our evaluation should not substantially intrude upon the jury’s role as the judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.
Analysis
Appellant’s argument about the legal sufficiency of the evidence addresses the offense as charged in the original indictment. In the original indictment, the grand jury alleged that the complaining witness was a child younger than fourteen years of age, that Appellant caused the penetration of her sexual organ with his hands or fingers, and that he caused the penetration of her mouth with his sexual organ. This indictment alleged the elements of aggravated sexual assault. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i),(ii), (a)(2)(B) (Vernon Supp. 2007).
However, the indictment was amended prior to trial. The amended indictment, which was read to the jury at the beginning of the trial and included in the jury charge, alleged that Appellant caused his sexual organ to contact or penetrate the child’s mouth.1 Either act is an aggravated sexual assault when perpetrated on a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii), (v), (a)(2)(B).
The complaining witness testified that Appellant touched his sexual organ to her mouth.2 Her uncorroborated testimony is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2006); Satterwhite v. State, 499 S.W.2d 314, 315 (Tex. Crim. App. 1973); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d). Appellant does not challenge the legal sufficiency of the evidence to support the remaining elements of the offense. Viewing the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense, including that Appellant caused his sexual organ to contact the mouth of the complaining witness, beyond a reasonable doubt. We overrule Appellant’s first issue.
With respect to the factual sufficiency of the evidence, Appellant argues that the complaining witness’s testimony “appears so unreliable and inconsistent that it should not suffice to support the
verdict reached by the jury.” After reviewing the evidence carefully, we cannot agree. Our review of the factual sufficiency of the evidence must not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).
Appellant has identified some areas where the evidence may conflict. The complaining witness told an investigator that an assault did not occur, but reported the assault after she had been removed from Appellant’s home for several months. One caregiver noticed the child acting out sexually, evidence that the child may have been assaulted, while another did not. And there was no physical evidence of the assault. The State offered expert testimony explaining some of the reasons children delay reports of sexual assault, and the nurse who examined the child testified that the kind of assaults the child alleged—touching of a sexual organ to the child’s mouth—would not be detected by a physical examination of the child.
It was the task of the jury to resolve any conflicts in the evidence. The conflicts here are not particularly grave, nor are they difficult to reconcile with the verdict. This question turns on the credibility of the complaining witness and whether the jury believed her. The jury’s resolution of the factual issues in this case was reasonable, and we generally defer to the jury on these kinds of factual and credibility issues. Viewing the evidence as a whole, and without the light most favorable to the verdict, we cannot conclude that the evidence is too weak to support the verdict standing alone or that the evidence is outweighed by contrary proof. We overrule Appellant’s second issue.
Preservation of Complaint
In his third issue, Appellant argues that the trial court erred when it allowed testimony about his assaults on the complaining witness’s siblings and the children’s living conditions to be admitted as extraneous evidence. The State responds that this complaint is not preserved for our review. We agree.
To preserve a complaint for appeal, a defendant must object, state the grounds for the objection with sufficient specificity, and obtain an adverse ruling. Tex. R. App. P. 33.1 (a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). A ruling on a motion in limine does not preserve a complaint. Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
Before trial, the State sought to lift a previously granted motion in limine barring introduction of extraneous evidence about alleged sexual assaults by Appellant on the complaining witness’s sisters and about the conditions of the home in which the children lived. The State argued that this evidence was admissible as Rule of Evidence 404(b) evidence and as contextual evidence. Appellant’s counsel objected. The trial court lifted the limine order. This evidence formed a large part of the State’s case, but Appellant’s counsel did not object to the evidence when it was offered.3 Because there was not a contemporaneous objection, this complaint is not preserved for our review. We overrule Appellant’s third issue.
Disposition
We affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Opinion delivered December 21, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 The amended indictment was not originally included in the record of this case. At the State’s request, the clerk supplemented the record with the amended indictment.
2 Appellant concedes there is “some evidence that he cause[ed] his sexual organ to touch her mouth. . . .”
3 Appellant has not identified any objection that was raised to this evidence other than resisting the lifting of the motion in limine. We have identified one objection to one of the sibling’s out of court statements about an assault. Appellant’s counsel objected on the grounds that it was hearsay, not that it was inadmissible extraneous information. The trial court asked if there were other objections. Counsel said there were not, and the trial court overruled the hearsay objection. Even if the trial court erred in allowing the hearsay statements, any error is harmless because Appellant did not object when another witness testified about the same statements. See Saldano v. State, 232 S.W.3d 77, 102 (Tex. Crim. App. 2007).