Barker, Jerry Shaw v. State

Affirmed and Memorandum Opinion filed April 4, 2006

Affirmed and Memorandum Opinion filed April 4, 2006.

 

 

In The

 

Fourteenth Court of Appeals

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 NO. 14-05-00040-CR

 NO. 14-05-00041-CR

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JERRY SHAW BARKER, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

 

 

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause Nos. 03CR3855 & 03CR3856

 

 

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Jerry Shaw Barker of two counts of aggravated sexual assault of a child and sentenced him to forty-five years= imprisonment and a $5,000 fine on each count.  In six issues, appellant argues (1) the evidence is legally and factually insufficient to support his convictions and (2) the indictment, evidence, and charge contain a material variance that renders the evidence legally insufficient to support his convictions.  We affirm.

 


Factual and Procedural Background

Appellant lived with D.V., his ten-year-old stepson, and D.V.=s mother, brother, and sister.  According to D.V., on two occasions in 2003 when he and appellant were home alone, appellant told D.V. to go to his sister=s room and remove his pants.  When D.V. complied, appellant sexually assaulted him and threatened to harm D.V. and his mother if D.V. told anyone.  D.V. nonetheless told his mother what happened a few days after the second assault, and she took him to the hospital.  Eva Blight, a pediatric nurse practitioner at the University of Texas Medical Branch (AUTMB@), examined D.V. on December 11 and 12, 2003, and observed a still-healing Y-shaped fissure on his anus.  Blight took notes during these examinations and also photographed and made diagrams of the fissure, which she discussed with Dr. James Lukefahr, director of the UTMB child abuse center.  The State subsequently charged appellant with two counts of sexual assault against D.V.[1]

At trial, D.V. took the stand and gave detailed testimony about the sexual assaults.[2]  Blight and Dr. Lukefahr testified about D.V.=s examination and anal fissure.[3]  According to Blight, the fissure was severe, had probably occurred within the preceding month, and was Aclear evidence of penetrating trauma.@  On cross-examination, Dr. Lukefahr acknowledged that constipation can cause anal fissures but noted on redirect that, due to the extensive nature of D.V.=s fissure, he believed it was caused by penetrating force and not constipation.  Appellant testified on his own behalf and denied abusing D.V.


Sufficiency of the Evidence

In his first four issues, appellant claims the evidence is legally and factually insufficient to support his convictions.  Specifically, he argues the evidence is insufficient because no witnesses testified to the assault, appellant denied committing the assault, and the only physical evidence was D.V.=s anal fissure, which appellant claims could have been caused by constipation. 

In conducting a legal-sufficiency review claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  In our review, we accord great deference A>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.=@  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id. at 133 n.13.


In conducting a factual-sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  We may find the verdict factually insufficient in two ways.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  We must discuss the evidence appellant claims is the most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder.  Zuniga, 144 S.W.3d at 482.  Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain, 958 S.W.2d at 407.

The Texas Penal Code provides that a person commits aggravated sexual assault of a child if he Aintentionally or knowingly . . . causes the penetration of the anus or sexual organ of a child by any means@ or Acauses the anus of a child to contact the . . . sexual organ of another person, including the actor,@ and the child is under fourteen years of age.  See Tex. Penal Code Ann. _ 22.021(a)(1)(B), (a)(2)(B) (Vernon Supp. 2005).

Having reviewed the record, we find the evidence both legally and factually sufficient to support appellant=s conviction.  At trial, D.V. gave detailed testimony about the sexual assault, and his testimony alone is sufficient to support appellant=s conviction.  See Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (AThe testimony of a victim[,] standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault.@ (alteration in original) (citation omitted)).  Further, D.V.=s testimony was corroborated by physical evidence of the anal fissure and Dr. Lukefahr=s testimony attributing the fissure to penetrating trauma rather than constipation.  Viewing this evidence in a light most favorable to the verdict, we conclude a jury rationally could have found beyond a reasonable doubt that appellant sexually assaulted D.V.  Viewing the same evidence in a neutral light, we conclude the evidence is not too weak, nor the contrary evidence too strong, to support a finding of guilt beyond a reasonable doubt.  Accordingly, we overrule appellant=s first four issues.


The Jury Charge

In his fifth and sixth issues, appellant claims the jury charges on both counts contain error.  He argues that because there is a discrepancy between the abstract sections of the charges and the indictments and trial evidence, a material variance exists that renders the evidence legally insufficient to support his convictions.  A Avariance@ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.  Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001); Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998).  In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Gollihar, 46 S.W.3d at 246.  Here, the indictments charge appellant with Apenetration of the anus of [D.V.],@ and the application sections of the charges correctly reflect this language.  However, the abstract sections of the charges define aggravated sexual assault of a child as Apenetration of the sexual organ of a child@ (emphasis added).  The State concedes that the charges contain error because the abstract sections read Asexual organ@ rather than Aanus,@ and we agree.  However, this constitutes a definitional error, not a variance between the charging instruments and the proof at trial.  Thus, the appropriate analysis is that of jury charge error.  Because appellant failed to object to the error at trial, we next consider whether it caused appellant egregious harm.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).


Viewed together, the jury charges, trial evidence, and arguments of counsel made abundantly clear that appellant was charged with two counts of anal penetration of a male child.  The application portions of the jury charges correctly specify Aanus,@ and the trial testimony and medical evidence relate only to anal penetration.  Additionally, because the nature of male anatomy is generally understood and the evidence in this case concerned appellant=s penetration of D.V. with appellant=s penis, it is extremely unlikely the erroneous definitional language could have caused the jury to contemplate a different offense from that with which appellant was charged.  Nothing in the record suggests the error affected the basis of appellant=s case, deprived him of a valuable right, or vitally affected his defensive theory.  Thus, we conclude that the jury charge errors did not cause appellant egregious harm.   Accordingly, we overrule appellant=s final two issues.

We affirm the trial court=s judgment.                        

 

 

 

/s/      Leslie Brock Yates

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed April 4, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

 

 

 

 

 



[1]  D.V.=s sister also claimed appellant sexually assaulted her.  Appellant was tried concurrently on two counts of sexually assaulting D.V.=s sister and two counts of sexually assaulting D.V.  The jury acquitted appellant of both counts against D.V.=s sister but convicted him of both counts against D.V.

[2]  D.V. testified that during the first assault, appellant told him to turn around and lie on the bed after making D.V. remove his pants.  D.V. said he then watched as appellant Aunzipped his fly@ and Apull[ed] out his penis.@  Appellant held D.V.=s head with his hand, Aput his penis in [D.V.=s] butt,@ and began Apushing back and forth.@  D.V. testified that he could feel appellant=s penis inside him and that it hurt.  Appellant stopped when he heard a door close and told D.V. to pull up his pants.  During the second assault, appellant Apushed [D.V.] on the bed@ and similarly assaulted him until the telephone rang.

[3]  Although Dr. Lukefahr did not personally examine D.V. at the hospital, he testified that he based his opinion on the photographs, notes, and diagrams Blight made during her examinations of D.V.