NO. 12-06-00264-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JESSE ROBERT PROCTOR, § APPEAL FROM THE 420TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Jesse Robert Proctor appeals his convictions for two counts of aggravated sexual assault of a child, for which he was sentenced to imprisonment for fifteen years for the first count and thirty years for the second count with the sentences to be served concurrently. In six issues, Appellant contends that the trial court erred in admitting evidence of an extraneous offense and that the evidence is neither legally nor factually sufficient to support his convictions. We affirm.
Background
C.P. and his wife, A.A., are the parents of B.A., and Appellant is C.P.’s cousin. When B.A. was two years old, Appellant traveled to Nacogdoches to visit C.P. and A.A. Rather than have Appellant return home that night, C.P. and A.A. invited him to sleep in the bedroom of an older child who was not at home. After C.P. went to bed, Appellant and A.A. traveled to San Augustine, returned to Nacogdoches, and stayed up “talking” a while longer. A.A. stated that she went to bed at approximately 3:00 a.m., and at that time, she believed Appellant was in the older child’s bedroom watching television.
A.A. got up at 5:00 a.m. When A.A. walked by B.A.’s room, she saw that Appellant was in B.A.’s toddler bed.1 Concerned by what she saw, A.A. got C.P., and they went into B.A.’s room. There, they observed Appellant lying on his side behind B.A., who also was lying on her side. B.A. was crying softly. Appellant was in his boxer shorts with part of his penis exposed. B.A.’s nightshirt was pulled up above her waist, and her panties were moved to the side. C.P. confronted Appellant and told him to leave the apartment. Appellant told C.P. that he did not know what was going on and did not know why he was in B.A.’s bed. C.P. escorted Appellant to the other bedroom before going to work. Appellant then gathered his personal items and left the apartment.
After Appellant left, A.A. asked B.A. what had happened. B.A. said that Appellant2 had “gotten in the bed with her and was touching her.” B.A. further said that her tee-tee hurt and pointed to her anus. 3 Finally, B.A. said that Appellant had touched her tee-tee and again pointed to her anus. A.A. then examined B.A.’s anus and saw that it was very red. B.A.’s parents took her to the police station in Nacogdoches where they discussed what had occurred with Detective Ryan Ball. Ball did not interview B.A. at that time. Because the Nacogdoches hospital did not have a sexual assault nurse examiner, Ball referred C.P. and A.A. to a hospital in Lufkin.
C.P. and A.A. took B.A. to Memorial Health System of East Texas in Lufkin where B.A. was interviewed by Norma Sanford, a sexual assault nurse examiner. B.A. was not able to tell Sanford what had happened to her. Sanford conducted a sexual assault examination of B.A. and noted that B.A. had a bright red discoloration of the skin surrounding the anal opening. While there was no tearing around the anus, Sanford stated that it is possible for a child’s anus to be penetrated without any tearing. She further stated that the redness around B.A.’s anus was consistent with someone having rubbed or touched her anus. Although Sanford stated that the redness could have been caused
by a lack of hygiene, she did not see any such evidence during her examination.
Appellant was charged by indictment with two counts of aggravated sexual assault of a child.4 In count one, the State alleged that Appellant intentionally and knowingly caused the anus of B.A. to contact the sexual organ of Appellant. In count two, the State alleged that Appellant intentionally and knowingly caused the penetration of the anus of B.A. by placing his sexual organ, his finger, or an unknown object in the anus of B.A. The case proceeded to trial. During trial, C.P. testified that in the apartment on the date of the incident, Appellant said that he did not know what was going on or why he was in B.A.’s bed. Later, over Appellant’s objection, the State offered testimony from W.K. that when she was eleven years old, Appellant touched her inappropriately on two different occasions. She testified further that as a result of this touching, Appellant was convicted of indecency with a child and received probation. Appellant also testified. During his direct testimony, he denied touching W.K. The State cross examined him about his written statement describing the incidents with W.K. and his subsequent indecency conviction.
At the conclusion of the trial, the jury found Appellant guilty of both counts of aggravated sexual assault of a child as charged in the indictment. The jury assessed his punishment at fifteen years of imprisonment for count one and thirty years of imprisonment for count two. The trial court sentenced Appellant accordingly, and ordered that the sentences be served concurrently. This appeal followed.
Extraneous Offense
In his first and second issues, Appellant argues that the trial court erred in allowing evidence of an extraneous offense. He contends that the evidence was inadmissible under Texas Rules of Evidence 404(b) and 403.
Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990). The trial court is in the best position to decide questions of admissibility, and we will uphold a trial court’s decision to admit or exclude evidence if it is “within the zone of reasonable disagreement.” Rodriguez, 203 S.W.3d at 841. A determination is beyond the zone of reasonable disagreement if by no reasonable perception of common experience could it be concluded that the proffered evidence had a tendency to make the existence of a fact of consequence more or less probable than it would be otherwise. Montgomery, 810 S.W.2d at 391.
Applicable Law
To be admissible, evidence must be relevant. Tex. R. Evid. 402. Evidence that is not relevant is inadmissible. Id. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. The court of criminal appeals has explained the relevancy inquiry necessary under Rule 404(b) of the Texas Rules of Evidence as follows:
Under Montgomery, then, it appears that “fact of consequence” includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. An evidentiary fact that stands wholly unconnected to an elemental fact, however, is not a “fact of consequence.” A court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a “fact of consequence” in the case more or less likely.
Rankin v. State, 974 S.W.2d 707, 709-10 (Tex. Crim. App. 1996).
Evidence of character to prove conduct conforming to that character is relevant. Gilbert v. State, 808 S.W.2d 467, 471 n.4 (Tex. Crim. App. 1991). However, Rule 404(b) prohibits the introduction of “[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith.” Tex. R. Evid. 404(b). Extraneous offense evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. The court of criminal appeals, noting that it is probably “better to be consistent than right,” has held that “a simple plea of not guilty does not make issues such as intent relevant issues of consequence for . . . Rule 404(b) purposes. . . .” Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). But cross examination of the State’s witnesses or presentation of various defensive theories can place intent at issue. Id.; see also Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996).
If the trial court determines that the evidence of extraneous offenses is admissible, the court must conduct a balancing test to determine if the probative value of the evidence is substantially outweighed by one or more dangers. See Rodriguez, 203 S.W.3d at 843. Factors to be considered in making this determination include the probative value of the evidence, the potential the other crimes, wrongs, or acts have to impress the jury in some irrational but indelible way, the time needed to develop the evidence, and the proponent’s need for the evidence. Id; see also Tex. R. Evid. 403.
Application
At trial, C.P. testified that in the apartment on the date of the incident, Appellant said he did not know what was going on or why he was in B.A.’s bed. Over Appellant’s objection, the State later presented the testimony of W.K., who testified about two incidents in which Appellant had touched her inappropriately. She testified further that these incidents resulted in Appellant’s being convicted of indecency with a child. Appellant urges that the admission of W.K.’s testimony was reversible error. The State contends that the statement recounted by C.P. raised the issue of intent and absence of mistake or accident. While more than a plea of not guilty, we are not convinced that this out of court statement is enough to place Appellant’s intent at issue for Rule 404(b) purposes. See Robbins, 88 S.W.3d at 261. However, we need not decide whether the trial court’s ruling was error because a determination that error occurred is only one part of the analysis.
The erroneous admission of extraneous offense evidence is nonconstitutional error. Coleman v. State, 188 S.W.3d 708, 726 (Tex. App.–Tyler 2005, pet. ref’d), cert. denied, __ U.S. __, 127 S. Ct. 502, 166 L. Ed. 2d 376 (2006). A nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious influence on the conviction or punishment. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). It is well established that the improper admission of evidence is not harmful error if the same facts are proved by other properly admitted evidence. See McNac v. State, 215 S.W.3d 420, 424-25 (Tex. Crim. App. 2007); Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).
W.K. testified that Appellant touched her on two different occasions, once under her shirt and once under her pants. As a result, Appellant was convicted of indecency with a child. Then Appellant testified. During his direct testimony, Appellant testified that W.K.’s testimony was incorrect because “[n]othing happened” with her. The State then cross examined him about the indecency conviction. Appellant acknowledged that he wrote a statement admitting that he touched W.K. on two occasions, once under her shirt and once in “the front of her panties.” He also testified that his statement was forced and that it was not true. Appellant did not object to the State’s cross examination and does not argue here that any of his testimony elicited during the State’s cross examination was inadmissible. Thus, even if the trial court erred in admitting W.K.’s testimony about the extraneous offense, the error is harmless because Appellant provided essentially the same information through his own testimony.5 Appellant’s first and second issues are overruled.
Evidentiary Sufficiency
In his third, fourth, fifth, and sixth issues, Appellant argues that the evidence is neither legally nor factually sufficient to support the convictions. Specifically, Appellant argues that no witness testified and no medical evidence established that he caused B.A.’s anus to contact his sexual organ or caused the penetration of B.A.’s anus.
Legal Sufficiency
Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.
As to count one, as alleged in the indictment, the State was required to prove that Appellant intentionally or knowingly caused the anus of B.A., a child fourteen years of age or younger and not the spouse of Appellant, to contact the sexual organ of Appellant. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2007). As to count two, as alleged in the indictment, the State was required to prove that Appellant intentionally or knowingly caused the penetration of the anus of B.A., a child fourteen years of age or younger and not the spouse of Appellant, by placing his sexual organ, finger, or an unknown object in the anus of the child. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2007).
The state may prove penetration by circumstantial evidence. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Campbell v. State, 189 S.W.3d 822, 827 (Tex. App.–Houston [1st Dist.] 2006, no pet.). The slightest penetration is sufficient evidence to support a conviction so long as the penetration has been shown beyond a reasonable doubt. Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974); Campbell, 189 S.W.3d at 827; Murphy v. State, 4 S.W.3d 926, 929 (Tex. Crim. App.–Waco 1999, pet. ref’d).
Here, Appellant was found in the bed of B.A., a two year old. Appellant’s penis was exposed, and B.A.’s nightshirt was pulled above her waist and her panties moved to the side. Appellant was found lying directly behind B.A. B.A. told her mother that Appellant had touched her and had hurt her. B.A. claimed that Appellant had touched her “tee-tee” and pointed to her anus. Further, Sanford, a sexual assault nurse examiner, examined B.A. and testified that her anus was red. Sanford stated that the redness was consistent with someone having rubbed or touched B.A.’s anus. She also testified that B.A.’s anus could have been penetrated even though there was no tearing.
As to evidence of touching, B.A.’s comments to her mother indicate that Appellant was touching her anus. Because Appellant was found lying behind B.A. with his penis partially exposed, the evidence is legally sufficient to support a conviction as to count one. As to count two, the evidence of penetration is solely circumstantial. However, circumstantial evidence of penetration is sufficient so long as it proves penetration beyond a reasonable doubt. See Murphy, 4 S.W.3d at 929. B.A.’s comment that Appellant hurt her along with B.A.’s anus being red is circumstantial evidence that, when viewed in the light most favorable to the jury’s verdict, is legally sufficient to establish penetration beyond a reasonable doubt. Examining the aforementioned evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have determined beyond a reasonable doubt that Appellant committed the offense of aggravated sexual assault of a child as charged in counts one and two of the indictment. Thus, we hold that the evidence was legally sufficient to support the trial court’s judgment. Appellant’s third and fourth issues are overruled.
Factual Sufficiency
Turning to Appellant’s contention that the evidence is factually insufficient to support the trial court’s judgment, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury 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). Although 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, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the
weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d). Ultimately, we must ask 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 our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence factually insufficient only when reviewing court objectively concludes great weight and preponderance of the evidence contradicts the jury’s verdict).
Here, in addition to the evidence discussed above, we consider the evidence that contradicts the jury’s determination. Sanford testified that the redness of B.A.’s anus could be explained either by a lack of hygiene or by a rubbing or touching of the anus. Appellant offered the testimony of two witnesses, his aunt and sister, who claimed that they had seen B.A. shortly before the incident, and that she had diaper rash. No witness testified that B.A.’s anus had been penetrated.
Nonetheless, we must consider this evidence in the context of the record as a whole. We already have held that the lack of direct evidence of penetration is not dispositive. The circumstantial evidence that B.A.’s anus had been penetrated is sufficient support for the jury’s verdict. Further, while there is some evidence to the contrary, the jury heard testimony that B.A. had no diaper rash and no hygiene problems. As such, we conclude that the jury could have reasonably found that Appellant committed aggravated sexual assault on B.A. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (stating that the jury determines the weight to be given testimony of witnesses and resolves of any conflicts in the evidence); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that a jury may believe all, some, or none of a witness’s testimony).
Our review of the entire record, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. See Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 11. Therefore, we hold that the evidence is factually sufficient to support the trial court’s judgment. Appellant’s fifth and sixth issues are overruled.
Disposition
Having overruled all of Appellant’s issues, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered December 12, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 At trial, Appellant claimed that he was not in B.A.’s room but instead was still in the older child’s room when he was awakened by C.P. He claimed that he did not know what was happening but left the house because C.P. and A.A. were angry with him.
2 B.A. referred to Appellant by his nickname.
3 At the time, B.A. referred to both her vagina and her anus as her tee-tee.
4 See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2007).
5 One could argue that Appellant might never have testified had W.K.’s testimony not been presented. See Davis v. State, 203 S.W.3d 845, 855 (Tex. Crim. App. 2006). However, Appellant has not made that argument. Moreover, Appellant did not tell the trial court that he was testifying solely to “meet, destroy, or explain” W.K.’s testimony and does not make that argument here. See Leday v. State, 983 S.W.2d 713, 719 (Tex. Crim. App. 1998). We will not speculate as to how Appellant’s trial strategy and tactics might have been different had the trial court made different evidentiary rulings. See Davis, 203 S.W.3d at 855.