NO. 12-06-00197-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LESTER SAMUEL WILLIAMS, § APPEAL FROM THE
APPELLANT
V. § 217TH DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Lester Samuel Williams appeals his conviction for aggravated sexual assault and sexual assault. Appellant raises nine issues on appeal. We affirm.
Background
Appellant was charged by indictment with one count of aggravated sexual assault and one count of sexual assault. The victim was Appellant’s mentally disabled stepdaughter, B.G. Appellant had actively molested B.G. when she was between eight and fourteen years old. The charges related to two of many instances of sexual assault perpetrated upon B.G. by Appellant.
Appellant pleaded not guilty and was tried before a jury. The jury found Appellant guilty on both counts, assessing punishment at eighty years of imprisonment for the first count and twenty years of imprisonment for the second count. The jury fined Appellant $10,000 for each of the two counts. This appeal followed.
Admission of Counselor’s Testimony
Appellant contends that the trial court erred in admitting the testimony of Ruth Roberts, a licensed professional counselor, over Appellant’s hearsay objection. After the trial court overruled Appellant’s objection, Roberts testified that “[B.G.] told me she had sex with [Appellant]. . . .”
A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). A trial court’s decision on the admissibility of evidence will not be reversed as long as the decision is within the “zone of reasonable disagreement.” Id. at 102. Absent an abuse of discretion, we do not reverse a trial court’s decision to admit evidence. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).
Rule 803 of the Texas Rules of Evidence provides that statements made for the purpose of medical diagnosis or treatment are excluded from the hearsay rule, even where the declarant is available as a witness. Tex. R. Evid. 803(4). This rule has been interpreted to include statements made by sexual assault victims to mental health counselors during the course of mental health counseling for their assault. See Puderbaugh v. State, 31 S.W.3d 683, 685 (Tex. App.–Beaumont 2000, pet. ref’d).
Here, Roberts testified that she was a licensed professional counselor and that she had a master’s degree in community counseling. Roberts testified she had counseled B.G. for four months regarding Appellant’s sexual abuse and that B.G. understood the purpose of the counseling, despite her mental disability. As such, the trial court’s decision to admit Roberts’s testimony was not an abuse of discretion. See id. We overrule Appellant’s first issue.
Confrontation of Witness
In his second and third issues, Appellant complains that he was denied his federal and state constitutional right to confrontation. At trial, Appellant objected to the admission of a videotape interview of B.G. After conducting an evidentiary hearing, at which B.G. testified, the trial court sustained the objection. This videotape was never admitted into evidence. The State subsequently chose not to call B.G. as a witness. Appellant now claims that, in the wake of his successful objection, the prosecution was constitutionally required to call B.G. as a witness so that he could have the opportunity to cross examine her. He argues that, by failing to do so, he was deprived of his constitutional right of confrontation.
The Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution provide an accused the right to confront his accuser. U.S. Const., amend. VI; Tex. Const., art. I, § 10. The Sixth Amendment right of the accused to confront his accuser is triggered when “testimonial” statements are offered against the accused. See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004). Appellant makes no independent argument related to the Texas Constitution and, therefore, for our purposes here, we will assume that the protections of the Texas Constitution are no broader than those of the Sixth Amendment. See Key v. State, 173 S.W.3d 72, 77 (Tex. App.–Tyler 2005, pet. ref’d).
Appellant begins his briefing of this issue by describing his success in preventing the admission of B.G.’s videotape interview. Nowhere in Appellant’s argument does Appellant point out or imply that any testimonial statements were ever admitted. Absent the admission of testimonial statements, there was no witness for Appellant to cross examine. See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; cf. Lowrey v. State, 757 S.W.2d 358, 358-59 (Tex. Crim. App. 1988) (holding that right to confront was violated where videotape interview of victim was admitted into evidence and defendant was not afforded a meaningful opportunity to cross examine the victim). Therefore, Appellant was not denied the right to cross examine.1 See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364. We overrule Appellant’s second and third issues.
Legal and Factual Sufficiency of the Evidence
In his fourth and fifth issues, Appellant contends that the evidence was legally and factually insufficient to support his conviction for aggravated sexual assault. In his sixth and seventh issues, Appellant contends the evidence was legally and factually insufficient to support his conviction for sexual assault.
Standard of Review
The Due Process Clause of the Fourteenth Amendment requires that evidence be legally sufficient 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). Evidence is legally sufficient when an appellate court, viewing the evidence in the light most favorable to the judgment, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). We must bear in mind that the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The jury is entitled to draw reasonable inferences from the evidence. Dudley v. State, 205 S.W.3d 82, 86-87 (Tex. App.–Tyler 2006, no pet.). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).
In conducting a factual sufficiency review of the evidence, 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). A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The fact that we might harbor a subjective level of reasonable doubt is not enough to overturn a conviction that is founded on legally sufficient evidence. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).
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. Dudley, 205 S.W.3d at 89. We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of the conflict. See Watson, 204 S.W.3d at 417.
Discussion
As charged in the first count of the indictment, the State had to prove that, on or about February 15, 2002, Appellant intentionally or knowingly caused the penetration of the female sexual organ of B.G., a child who was younger than 14 years of age and not Appellant’s spouse, by Appellant’s sexual organ. As charged in the second count of the indictment, the State had to prove that, on or about January 30, 2005, Appellant intentionally or knowingly caused the penetration of the female sexual organ of B.G., a child who was younger than 17 years of age and not Appellant’s spouse, by Appellant’s sexual organ. Both counts of the indictment accurately set forth the elements necessary, at the relevant times, to support a conviction for aggravated sexual assault (Count I) and sexual assault (Count II).2 See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2006) (Count I); Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2006) (Count II). The “on or about” language in the indictment allows the State to prove a date other than the one alleged in the indictment, as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). B.G. turned fourteen before the presentment of the indictment. Therefore, as to Count I, the State was restricted to a period ending on B.G.’s fourteenth birthday.
At trial, Nancy Bryan, B.G.’s teacher, testified that B.G. told her Appellant had raped her. A sexual assault nurse examiner (SANE nurse) testified that B.G. told her Appellant had penetrated her sexual organ with his sexual organ, and that Appellant had sex with her more than once when they lived in Zavalla, Texas. She also testified that B.G. used a diagram to indicate that Appellant had “touched” her breast and her genital area. A subsequent medical examination of B.G. indicated “traumatic penetration,” which was consistent with someone having had sexual intercourse with B.G. Ruth Roberts, B.G.’s counselor, testified that B.G. told her she had had sex with Appellant. Appellant’s own son testified that he once saw Appellant touching B.G. with his hand under her shirt.
W.S. and B.S., B.G.’s friends, testified that B.G. told them Appellant had sex with her when she was thirteen. Zavalla Police Chief Bobby Epperly testified that his investigation established Appellant had sexually assaulted B.G. in Zavalla when B.G. was eleven, and that Appellant also sexually assaulted B.G. when she was fourteen years of age. Epperly explained that the dates were established by correlating the residences in Zavalla where the assaults occurred with the time during which Appellant and his family lived at each residence. Epperly stated that he based his calculations on his discussion of the case with B.G. This evidence supports a finding that Appellant was under fourteen years of age when the sexual assault alleged in Count I occurred.
Appellant called three witnesses: his brother, Vernon Williams, his sister, Mary Moreland, and his niece, Viry Nash. Each essentially testified that they had not witnessed any signs of abuse and that Appellant was a good father to B.G. Also, in contradiction to the State’s witnesses, they each denied that it was possible to lock the door to the room in which some of the sexual assaults were alleged to have occurred.
Appellant also testified in his own defense. He denied the allegations of sexual assault. When asked why B.G. would have made such allegations, Appellant suggested that she might have done so in the hope that she could then move in with her grandmother or aunt. Appellant testified that he had been opposed to such a move. He also suggested that CPS (Child Protective Services) may have manipulated her into making the allegations. At one point, he suggested that there might also be a conspiracy between CPS and Texas Home Health, an agency that had been supplying home health nurses to his home. Likewise, he suggested that Chief Epperly might have a vendetta against him because of a childhood dispute between them. As to the physical evidence of penetration, Appellant did not deny the evidence, but, instead, was of the opinion that the penetration could have been caused by B.G. having sex with someone other than himself. In this regard, Appellant had no knowledge of such an incident, but argued that parents are not always aware of their child’s sexual activities.
Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Dudley, 205 S.W.3d at 89. Here, the jury resolved the conflicts in the evidence in favor of the State. Based upon our review of the record and our application of the appropriate standards of review, we hold that the evidence was both legally and factually sufficient for a jury to have found that Appellant committed both aggravated sexual assault and sexual assault. We overrule Appellant’s fourth, fifth, sixth, and seventh issues.
Denial of Motion for Directed Verdict
In his eighth issue, Appellant contends the trial court erred in denying his motion for a directed verdict regarding the aggravated sexual assault count. The standard of review applicable to a motion for directed verdict is the same as that for reviewing legal sufficiency of the evidence. Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989). We have already held that the evidence was legally sufficient to support Appellant’s conviction. Therefore, we hold that the trial court did not err in denying Appellant’s motion for a directed verdict. We overrule Appellant’s eighth issue.
Missing Voir Dire Record
In his ninth issue, Appellant complains that voir dire was not recorded by the court reporter due to a mechanical malfunction. Texas Rule of Appellate Procedure 34.6(f) reads as follows:
An appellant is entitled to a new trial under the following circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or--if the proceedings were electronically recorded--a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
Tex. App. R. 34.6(f). Where an appellant may meet the other requirements of Rule 34.6(f), but fails to show the missing portion of the record is necessary to his appeal’s resolution, a new trial is not required. See Routier v. State, 112 S.W.3d 554, 571-72 (Tex. Crim. App. 2003); Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim App. 1999). The question of whether a missing portion of the reporter’s record is necessary to the appeal’s resolution is essentially a harm analysis. Issac, 989 S.W.2d at 757. If the missing portion of the record is not necessary to the appeal’s resolution, then the loss of that portion of the record is harmless and a new trial is not required. Id.
Appellant admits in his brief that he cannot currently discern any potential reversible error that occurred during voir dire. Therefore, Appellant has failed to show that the missing portion of the record is necessary to his appeal. See id. We overrule Appellant’s ninth issue.
Disposition
We affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered August 8, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 In Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987) (plurality op.), the court of criminal appeals stated that “[requiring] the defendant to call his accuser if he wants to question [the accuser] . . . places the defendant in the proverbial Catch-22 . . . . Either way[,] the defendant is placed at a distinct and undue disadvantage.” We note, however, that Long involved an instance where a videotape statement was admitted without the declarant being called as a witness. Therefore, Long is distinguishable from the facts presented here.
2 The language of the relevant sections of the Penal Code was amended several times during the applicable time period. Because the language pertinent to our review has remained substantially the same, we cite the current versions of those sections.