NO. 12-06-00202-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEREMIAH DENBY, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Jeremiah Denby appeals from his conviction for aggravated sexual assault. In two issues, he argues that the evidence was legally and factually insufficient to support the conviction and that the trial court should have sustained his objection to opinion testimony. We affirm.
Background
Appellant is M.D.’s uncle. M.D. slept at her grandmother’s house one night when she was twelve years old. At about five in the morning, M.D. awoke to her uncle, who lived in the house, placing his fingers in her vagina. She ran from him to another room and did not tell her mother about the incident for several weeks. When she did tell her mother, her mother immediately confronted Appellant. Without hearing M.D.’s accusations, Appellant said that M.D. was lying. M.D.’s father took M.D. aside and she apparently told him of the incident as well. The father then confronted Appellant, his own brother, prompting Appellant to call the police. The police arrived, interviewed witnesses, and eventually arrested Appellant.
A Houston County grand jury indicted Appellant for the felony offense of aggravated sexual assault. In the indictment, they also alleged that he had previously been convicted of rape, burglary of a habitation with intent to commit sexual assault, and sexual assault. A trial was held, and Appellant pleaded not guilty. The jury found him guilty. The trial court conducted the punishment hearing, found the enhancements to be true, and assessed punishment at life imprisonment. This appeal followed.
Objection to Opinion Testimony
In his first issue, Appellant contends that the trial court should have sustained his objection to opinion testimony. This complaint is waived for failure to make a contemporaneous objection.
The relevant exchange is as follows:
Q [Prosecutor]: Okay. Your daughter [M.D.] has lived with you all her life, right.
A: Yes.
Q: Generally, just generally, she’s a pretty honest girl?
[Defense Counsel]: Your honor, I’m going to object as to an improper question.
The Court: What’s your legal objection?
[Defense Counsel]: Legal objection is one witness is not qualified to speak of the veracity of another.
The Court: Overruled.
On appeal, Appellant acknowledges that a witness may, in certain circumstances, testify about another’s character for truthfulness. See Tex. R. Evid. 608. He now argues that the witness should not have been able to testify about the complaining witness’s character for truthfulness because her character for truthfulness had not been attacked with opinion testimony. See Tex. R. Evid. 608(a)(2). The present complaint is not based on the qualification of a witness to “speak of the veracity of another” and is not the objection that was raised in the trial court.
To preserve error for appellate review, the record must show (1) that an appellant made a timely request, objection, or motion stating grounds sufficient to provide notice to the trial court; and (2) that the trial court ruled on the motion either explicitly or implicitly. See Tex. R. App. P. 33.1(a)(1)(A); Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004). The present complaint was not raised in the trial court, and the issue is waived. See Brown v. State, 6 S.W.3d 571, 582 (Tex. App.–Tyler 1999, pet. ref’d) (To preserve error, complaint on appeal must comport with objection made at trial); see also Pierce v. State, No. 03-03-00536-CR, 2005 Tex. App. LEXIS 6229, at *11 (Tex. App.–Austin 2005, no pet.) (mem. op., not designated for publication) (complaint of “duplicativeness” not sufficient to preserve complaint about application of Texas Rule of Evidence 608). We overrule Appellant’s first issue.
Sufficiency of the Evidence
In his second issue, Appellant argues that the evidence is legally and factually insufficient to support the verdict. Specifically, Appellant argues that there was insufficient evidence that he penetrated M.D.’s sexual organ.
Standard 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 without the light most favorable to the verdict, and we 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 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).
Under either standard, 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). With respect to our factual sufficiency review, 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. Santellan, 939 S.W.2d at 164.
Applicable Law and Analysis
As charged in the indictment, the State was required to prove that M.D. was a child younger than fourteen and not Appellant’s spouse and that Appellant intentionally or knowingly caused the penetration of her sexual organ with his finger. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2006). In the context of sexual assault, proof of the slightest penetration of any part of the female sexual organ is sufficient to meet the requirement of “penetration.” See Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); see also Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). There need not be proof of penetration of the vagina, and proof of penetration may be circumstantial. See Vernon, 841 S.W.2d at 409–10; Nilsson, 477 S.W.2d at 595–97.
M.D. testified about the penetration of her sexual organ. On direct examination she said that Appellant put his hand in her pants and was “[m]oving it around and stuff.” On at least three occasions, she affirmed that Appellant put his finger inside her. She testified that he “fingered” her. She testified that she knew what a vagina was and that she had one. When asked specifically if Appellant “put his fingers inside [her] vagina,” she said, “I don’t really know. All I know is that his hand was moving around and I kept feeling stuff.” The prosecutor followed up by asking, “Did he go inside you? Just a little bit even?” to which she responded in the affirmative. On cross examination she explained the “feeling stuff” related to a time while she was still asleep, or in the process of awakening, and that Appellant’s finger did go inside her.
The jury is in the best situation to evaluate this testimony. See Wesbrook, 29 S.W.3d at 111 (generally jury determines weight to give testimony of witness and resolves any conflicts in evidence). The State must only show the slightest penetration of the sexual organ, and the complaining witness said on at least three occasions that Appellant penetrated her sexual organ with his finger. Therefore, there is legally sufficient evidence for a rational jury to conclude that Appellant committed the offense.
With respect to our review of the factual sufficiency of the evidence, M.D.’s equivocation is not so troubling that we 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. Her lack of specificity in response to some questions, in the context they were asked, is understandable, and she testified on more than one occasion that Appellant penetrated her sexual organ. Therefore, we hold that the evidence is factually sufficient to support the verdict. We overrule Appellant’s second issue.
Disposition
Having overruled Appellant’s two issues, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered June 29, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)