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NUMBER 13-04-00430-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
IN THE MATTER OF T.B., A JUVENILE, Appellant.
On appeal from the Juvenile Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Memorandum Opinion by Justice Hinojosa
The trial court found that appellant, T.B., a juvenile, engaged in delinquent conduct based on a jury=s findings that he committed two counts of aggravated sexual assault of a child[1] and one count of criminal mischief.[2] Appellant was committed to the Texas Youth Commission for an indeterminate period of time, not to exceed his twenty-first birthday.[3] The trial court has certified that Athe juvenile=s appeal is not in a plea-bargain case, and the juvenile has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). By six points of error, appellant contends (1) the trial court erred by failing to give the jury a definition of Areasonable doubt,@ (2) the trial court erred by failing to give the jury a limiting instruction on extraneous offenses, and (3) the evidence is legally and factually insufficient to support the jury=s findings that appellant committed two counts of aggravated sexual assault of a child. We affirm.
A. Background
At the time of the sexual assaults, the child victim was eleven years old. The child victim=s mother testified that the child had been certified as mentally retarded and had the mental capacity of a six or seven year old child.
The child victim testified that appellant told him, AThat=s my pee-pee. Suck it like a lollipop.@ He also testified appellant Atook my pants down@ and Aput his pee-pee in my butt.@ The child victim testified unequivocally that he was not appellant=s spouse and that appellant penetrated his mouth and anus with appellant=s sexual organ when he was younger than fourteen years old. No additional evidence of the assaults was presented.
B. Reasonable Doubt
By his first point of error, appellant contends the trial court erred by failing to instruct the jury at the adjudication stage of the trial on the Anear certitude@ standard of reasonable doubt. In support of his contention, appellant cites Jackson v. Virginia, 443 U.S. 307 (1979), and Victor v. Nebraska, 511 U.S. 1 (1994), as authority that the trial court must instruct the jury at the adjudication stage of the trial that it must vote Anot true@ if it has not reached a subjective state of near certitude regarding the guilt of appellant.
Texas adopted the Jackson reasoning regarding instructions on reasonable doubt in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Geesa required the trial court to give a jury instruction on the definition of reasonable doubt, but not Anear certitude.@ See id.; see also Reyes v. State, 938 S.W.2d 718, 721 (Tex. Crim. App. 1996). However, the court of criminal appeals explicitly overruled this requirement in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), because the instruction was redundant and confusing. The Paulson court concluded Athat the better practice is to give no definition of reasonable doubt at all to the jury.@ Id. This is the standard Texas courts must now follow. See Hankins v. State, 132 S.W.3d 380, 384 (Tex. Crim. App. 2004). Accordingly, we hold the trial court did not err in failing to give the jury a reasonable doubt definition. Appellant=s first point of error is overruled.
C. Extraneous Offenses
By his second point of error, appellant contends the trial court erred by failing to give the jury a limiting instruction when the child victim testified that appellant had committed sexual acts with him Aa bunch of times.@
To preserve error for our review, a party must present the trial court with a timely objection, state with sufficient specificity the grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a); see Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). An objection is timely made if it is raised as soon as the ground for objection becomes apparent. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994). An objection requesting a limiting instruction must be sufficiently specific to inform the trial court of what is requested and why the party is entitled to it. See Burks v. State, 876 S.W.2d 877, 899 (Tex. Crim. App. 1994). AAn objection stating one legal basis may not be used to support a different legal theory on appeal.@ Rezac, 782 S.W.2d at 870.
The record shows appellant objected on Arelevancy@ grounds to the child victim=s statement as soon as it was made, but he never asked the trial court for a limiting instruction. Appellant=s second point of error is overruled.
D. Sufficiency of the Evidence
By his third, fourth, fifth, and sixth points of error, appellant contends the evidence is legally and factually insufficient to support the jury=s findings that appellant committed two counts of aggravated sexual assault of a child.
1. Standards of Review
When we review appeals of juvenile cases, we apply the criminal legal sufficiency standard of review. In re G.A.T., 16 S.W.3d 818, 828 (Tex. App.BHouston [14th Dist.] 2000, pet. denied). When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine 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; see Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000). This standard gives Afull play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@ Jackson, 443 U.S. at 319.
We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd); see Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This ensures that an actual failure in the State's proof of the crime warrants judgment of acquittal rather than a mere error in the jury charge submitted. Malik, 953 S.W.2d at 240.
The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.CBeaumont 1996, pet. ref=d). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
When we review the factual sufficiency of the evidence, we review all of the evidence and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses. Id. at 10-12. Disagreeing with the fact finder=s determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder=s determinations, particularly those concerning the weight and credibility of the evidence. Id.
2. Applicable Law
A hypothetically correct jury charge would ask the jury if appellant (1) on or about the alleged dates (2) intentionally or knowingly (3) caused the penetration of the mouth and anus of (4) a child younger than fourteen years of age and not married to appellant, (5) by appellant=s sexual organ. See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003).
The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Perez v. State, 113 S.W.3d 819, 838 (Tex. App.BAustin 2003, pet. ref=d). A conviction of aggravated sexual assault Ais supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense.@ Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005). A third person must be informed by the victim within one year of the alleged offense, except if the victim is younger than seventeen years old or mentally challenged. See id. art. 38.07(a), (b)(1).
The unsophisticated language of a child is sufficient to support a conviction as long as the child victim has sufficiently communicated to the trier of fact that the offensive sexual touching occurred to a part of the body within the definition of section 21.01 of the penal code. Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); see Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.BCorpus Christi 1996, pet. ref=d). The testimony of a child victim of sexual abuse is given wide latitude by the courts and the description of the sexual abuse need not be precise. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Given this latitude, no requirement exists that physical, medical, or other evidence be proffered to corroborate the victim=s testimony. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978).
3. Legal Sufficiency Analysis
By his fifth and sixth points of error, appellant complains that the testimony of the child victim is legally insufficient to support the jury=s findings that he penetrated the mouth and anus of the child victim with his penis. Specifically, he contends the child victim=s testimony was uncorroborated by (1) prompt outcry of molestation, (2) medical and DNA evidence, or (3) eyewitness testimony of the alleged abuse. Appellant argues that even with the child victim=s testimony, the Abeyond a reasonable doubt@ standard was not met.
As we previously stated, the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault, Perez, 113 S.W.3d at 838; see Garcia, 563 S.W.2d at 928, and uncorroborated testimony given by a child victim is sufficient to support a finding of delinquency. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). Therefore, corroborating evidence or testimony is not required to support the jury=s findings that appellant penetrated the mouth and anus of the child victim with his penis.
Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense of aggravated sexual assault of a child. Accordingly, we hold the evidence is legally sufficient to support the jury=s finding that appellant committed two counts of aggravated sexual assault of a child. Appellant=s fifth and sixth points of error are overruled.
4. Factual Sufficiency Analysis
By his third and fourth points of error, appellant contends the evidence is factually insufficient to support the jury=s findings that he penetrated the mouth and anus of the child victim with his penis. Specifically, he asserts the State failed to provide corroborating medical evidence or eyewitness testimony of the alleged abuse.
Because the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault, Perez, 113 S.W.3d at 838; see Garcia, 563 S.W.2d at 928, and uncorroborated testimony given by a child victim is sufficient to support a finding of delinquency, Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005), corroborating evidence or testimony is not required to support the jury=s findings that appellant penetrated the mouth and anus of the child victim with his penis.
Viewing all the evidence in a neutral light, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. Accordingly, we hold the evidence is factually sufficient to support the jury=s finding that appellant committed two counts of aggravated sexual assault of a child. Appellant=s third and fourth points of error are overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Memorandum Opinion delivered and filed this
the 18th day of August, 2005.
[1] The first count alleged appellant intentionally or knowingly penetrated the mouth of a person younger than fourteen years of age with his sexual organ. The second count alleged the same offense as the first, except that it alleged appellant penetrated the child victim=s anus. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(I), (ii) (Vernon 2003).
[2] Appellant pleaded Atrue@ to the allegation that he destroyed tangible property and the damages were more than $500 but less than $1,500. See Tex. Pen. Code Ann. ' 28.03(b)(3) (Vernon 2003).
[3] See Tex. Fam. Code Ann. ' 51.03 (Vernon Supp. 2004‑05).