Affirmed and Memorandum Opinion filed January 12, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00828-CR
NO. 14-04-00829-CR
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GREGORY BAILEY, Appellant
V.
THE STATE OF TEXAS, Appellee
______________________________________________________________
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Nos. 977,377 & 977,378
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M E M O R A N D U M O P I N I O N
A jury convicted appellant Gregory Bailey of two counts of aggravated sexual assault and sentenced him to nine years confinement for each offense.[1] In his sole issue on appeal, he challenges the factual sufficiency of the evidence supporting his conviction. We affirm.
I. Factual and Procedural Background
From February through October 2002, P.C. and her daughter, E.C.,[2] lived with appellant in his Houston apartment. Throughout that time, appellant and P.C. were dating. When the relationship ended, however, P.C. and E.C. moved to a different apartment with P.C.=s aunt. On November 6, 2002, E.C. told P.C. that appellant Atried to get in her bootie@ when they were living with him. P.C. asked when it occurred and E.C. responded it happened when P.C. was at work. When P.C. asked how and where she was touched, E.C. pointed to her vagina, which she called her Aprivate part.@ P.C. then reported the complaint to the police.
The police arranged for E.C. to be examined by doctors at the Children=s Assessment Center in Houston. There she was interviewed one-on-one by Dr. Debra Parks. E.C. told Dr. Parks that appellant touched her Ain my bootie@ and Ain my private part in the front@ Awith his penis and his hand.@ She also stated the contact occurred more than ten times. After the interview, Dr. Parks conducted a physical examination of E.C.=s vagina and anus. The results of the anal examination were normal, but the vaginal examination showed Aclear evidence of penetrating trauma.@
A formal complaint was filed against appellant on February 13, 2004. He was later indicted on two counts of aggravated sexual assault, one alleging he put his sexual organ in contact with E.C.=s sexual organ and one alleging he put his sexual organ in contact with E.C.=s anus. Appellant pleaded not guilty to both charges. A jury convicted him on both counts and sentenced him to nine years in prison for each.
II. Discussion
Appellant argues the evidence presented to the trial court was factually insufficient to support his conviction. In reviewing the evidence for factual sufficiency, we view it neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). In our evaluation of the evidence, we must be deferential to the findings of the fact-finder and resist intruding on its role as the sole judge of the witnesses= credibility and of the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). Our standard of review remains the same whether the evidence we consider is direct or circumstantial. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc).
A. Evidence Supporting Conviction
The State called E.C. to testify to the circumstances of the alleged assaults. E.C. testified that one afternoon, after returning to their home following a visit with appellant=s pastor, appellant instructed her to take off her clothes and to lie down in the bed. She then stated appellant got into the bed with her, wearing only a pair of boxer shorts. Once in the bed, E.C. laid on her back and appellant laid on his stomach. She described the ensuing activity as follows:
THE STATE: Okay. Now. You=re on your back and he is on his stomach. Is he on the side of you.?
E.C.: No.
THE STATE: Where is he?
E.C.: On top of me.
THE STATE: He was on the top of you. And then what happened?
E.C.: He moves up and down.
THE STATE: He moves up and down.
E.C.: Yes.
THE STATE: So he is moving up and down, is any part of him touching any part of you?
E.C.: Yes.
THE STATE: Can you tell us what that part is?
E.C.: His private part.[3]
THE STATE: His private part is doing what?
E.C.: Moving up and down.
THE STATE: And it=s moving up and down on?
E.C.: Me.
THE STATE: Is his private part in your private part or outside your private part.
E.C.: In.
THE STATE: It=s in?
E.C.: Yes.
THE STATE: And what does it feel like?
E.C.: It hurted.
E.C. also testified that on another occasion, similar activity occurred between her and appellant, but this time, appellant was naked and put vaseline on his Aprivate part@ before putting it inside hers. Finally, E.C. testified that on a third occasion, appellant Aput his private part in my behind.@ Using dolls, E.C. demonstrated for the jury how she and appellant were positioned for both types of sexual encounters. She also stated that although appellant entered her vagina more frequently than he did her anus, anal intercourse occurred on more than one occasion. On cross-examination, E.C. stated appellant tried to enter her Aprivate part@ more than ten times, and her Arear part@ more than five times.
Dr. Rebecca Girardet also testified on behalf of the State. Although she did not perform E.C.=s examination, Dr. Girardet reviewed Dr. Parks= records and a videotape of Dr. Parks= examination of E.C.. She testified the anal examination was normal, but also stated penetrating trauma to the anus is rarely visible. She explained as follows:
The tissues in the anus and also in the vagina are what called [sic] a mucus membrane tissue, so it=s just like the moist tissue that=s inside your mouth. So a good analogy is when you bite the inside of your cheek and it feels like a big injury. It may bleed but then a few days later it already healed completely and you don=t have a scar. The same thing can happen down here. These tissues are made to accommodate stool and babies and intercourse, so they=re made to stretch and will often heal following trauma without any scar. There can be a scar, but in most cases, there=s not.
She also recounted published studies on this issue that found 75 to 85 percent of girls who said they had been sexually assaulted did not show any signs of penetrating trauma. Despite its infrequency, however, Dr. Girardet testified E.C.=s vaginal examination showed she had a healed tear in her hymen, providing Aclear evidence@ of penetrating trauma.
On cross-examination, appellant=s counsel sought to elicit testimony from Dr. Girardet to support the proposition that penetrating trauma could come from sources other than a male sexual organ. Her responses, however, revealed the rarity of such a circumstance:
APPELLANT=S COUNSEL: We have no other source that could cause the tear of the hymen?
DR. GIRARDET: No. A tear of the hymen represents penetrating trauma.
APPELLANT=S COUNSEL: Could penetrating trauma be done through some foreign object?
DR. GIRARDET: Sure.
APPELLANT=S COUNSEL: Could it be self-inflicted by the child herself?
DR. GIRARDET: It=d be extremely unlikely.
APPELLANT=S COUNSEL: Do you know of cases where hymen tears are manifested themselves [sic] that were caused by an injury or accident that the child may have suffered in that area of her body such as a hard fall on a fence?
DR. GIRARDET: No.
APPELLANT=S COUNSEL: What about straddling on a bicycle?
DR. GIRARDET: No.
APPELLANT=S COUNSEL: What about falling on a pointed object?
DR. GIRARDET: No. On a pointed object?
APPELLANT=S COUNSEL: Yes.
DR. GIRARDET: It is theoretically possible if she were to fall just the right way on an upright stick, that would be penetrating trauma.
* * *
APPELLANT=S COUNSEL: [I]f there were penile penetration of ten times . . . would you not see more than one tear in the area?
DR. GIRARDET: Not necessarily. In fact, usually we don=t see any tears.
APPELLANT=S COUNSEL: So irrespective of how many times a child who had no prior sexual encounters, no penetration of the vagina, if she is presented to you with having been penetrated in the vagina 10, 15, 20 times ever time, you=re not going to see any hymen tears generally?
DR. GIRARDET: We could see hymen tears but most cases don=t have any.
* * *
APPELLANT=S COUNSEL: And you are also telling us, Doctor, that if the anus has been penetrated ten times or more over a three or four month period of time, that there will be no manifestation of any tears in that area?
DR. GIRARDET: In most cases, there will not be any tears. Correct.
On redirect examination, Dr. Girardet testified that if E.C.=s vagina were penetrated by an object as small as a finger, she would not have expected to see the healed section of her hymen.
Finally, the State presented the testimony of Dr. Lawrence Thompson, the director of therapy and psychological services at the Children=s Assessment Center. He testified that Adelayed outcry@ or Adelayed disclosure@ of acts of abuse was not uncommon among child victims, and that the absence of the offender from the home Acould definitely contribute@ to a child=s willingness to reveal what happened.
B. Evidence Supporting Acquittal
Appellant argues no rational trier of fact could conclude beyond a reasonable doubt he sexually assaulted E.C. At trial, he offered evidence to show that E.C. had a motive to lie about appellant=s behavior, that she incorrectly described appellant=s penis, and that she showed no emotional or physical manifestations of the alleged sexual contact. Appellant also elicited testimony contradicting assertions made by both E.C. and P.C. regarding the alleged encounters between E.C. and appellant, and also in regards to the relationship between P.C. and appellant. Finally, appellant elicited testimony suggesting his sexual organ never came into contact with E.C.=s anus.
On cross-examination, E.C. testified that she never liked appellant, that he was mean to her, and that he once whipped her when she did not want to clean up. Appellant=s counsel proceeded to ask E.C. to physically describe appellant=s genitalia:
APPELLANT=S COUNSEL: [H]ad you ever seen a man=s private part?
E.C.: No.
APPELLANT=S COUNSEL: You did see [appellant=s] private part, is that correct?
E.C.: Yes.
APPELLANT=S COUNSEL: Did you tell anyone connected with this case at Children=s Assessment Center that [appellant=s] private part was long?
E.C.: Yes.
APPELLANT=S COUNSEL: And did you tell them whenever [appellant] approached you that it was hard?
E.C.: Yes.
APPELLANT=S COUNSEL: And did you also tell someone connected with this investigation that it had spots on it?
E.C.: Yes.
APPELLANT=S COUNSEL: What kind of spots?
E.C.: Like a spot that you would have on your arm; like a mosquito bite or something.
APPELLANT=S COUNSEL: Was it one spot or lots of spots?
E.C.: More than one spot.
D.C. Wells, an investigator in the child abuse division of the Harris County District Attorney=s office, testified appellant voluntarily made arrangements with him to have his penis examined. An examination of appellant=s non-erect penis was conducted at Ben Taub Hospital in Houston on July 12, 2004, and no spots were found on it.
At trial, appellant focused on E.C.=s lack of emotional and physical changes following her alleged assaults. E.C. testified she never mentioned the incident to anyone, including P.C., her favorite teacher, her school principal, her father, her aunt, or appellant=s mother. Regarding the lack of emotional changes, Dr. Thompson admitted on cross-examination that although some children show no behavioral changes, he has also seen children exhibit signs of depression, anxiety, interpersonal difficulties, lack of trust in interpersonal relationships, and sexual Aacting out@ type behaviors.
As to the physical damages, E.C. testified she was scolded when she was approximately four or five years old for being in closets with young boys but had not been touched in her vagina or her anus before the encounter with appellant. E.C.=s also testified although the encounter left her in pain, she never experienced any bleeding as a result of either the vaginal or anal intercourse. Additionally, on cross-examination, Dr. Girardet testified as follows:
APPELLANT=S COUNSEL: Now, Dr. Girardet, does it stand to reason to you based upon your experience and number of examinations that you have conducted thatClet=s assume that a child=s vagina has been penetrated by a finger or penis for ten times or more that there would be no positive findings other than just one healed tear . . . .
DR. GIRARDET: Yes.
APPELLANT=S COUNSEL: Would repeated penetrations of a child=s vagina show, generally speaking, any loss of hymen tissue?
DR. GIRARDET: It can. But it doesn=t always.
* * *
APPELLANT=S COUNSEL: Well, what would be affected by repeated penetration by a finger, foreign object, or a penis on a child?
DR. GIRARDET: Even with repeated trauma, most children show no physical signs of that trauma on examination. Most have a normal examination. . . .
APPELLANT=S COUNSEL: Does the report reflect whether or not there was any measurement taking of the child=s vagina?
DR. GIRARDET: No. . . . [what=s] more important is the width of the hymenal tissue that=s left. Is there any or is it gone? And whether or not there are any tears in the tissue that=s there.
APPELLANT=S COUNSEL: Well, let me ask you, in this particular examination, was the hymen tissue absent or was it still present.
DR. GIRARDET: It was there.
APPELLANT=S COUNSEL: And did it show that there had been any loss of hymen tissue?
DR. GIRARDET: No.
Appellant=s counsel also highlighted contradictory testimony from the State=s witnesses. Although E.C. testified P.C. purchased medicine for her after E.C. complained of being sore in her vagina, P.C. testified E.C. never made any such complaints. P.C. was also unaware of any time appellant ever struck E.C., despite E.C.=s testimony to the contrary. Finally, P.C.=s testimony regarding her relationship with appellant after she was made aware of the charges stands in stark contrast to appellant=s testimony. According to P.C., her only contact with appellant after the investigation began was a chance encounter while she was walking E.C. to the bus. According to appellant, he and P.C. continued to have sex Aoff and on@ until September 2003.
Lastly, in his cross-examination of E.C., appellant=s counsel raised the possibility that appellant=s penis never entered E.C.=s anus:
APPELLANT=S COUNSEL: Isn=t it true that you don=t know what [appellant] was trying to put in you, if anything, because you didn=t see it, did you?
E.C.: No.
APPELLANT=S COUNSEL: You didn=t see it, did you?
E.C.: No.
APPELLANT=S COUNSEL: You never seen a penis before, did you?
E.C.: No.
APPELLANT=S COUNSEL: And you never had any male=s private part in to enter your behind, did you?
E.C.: No.
APPELLANT=S COUNSEL: So you don=t know whether it was some kind of object or finger or what have you, do you?
E.C.: No.
E.C. also testified her contact with appellant left her sore in her Aprivate part@ but not in her Arear part.@
C. Is the Evidence Factually Sufficient to Support Appellant=s Conviction?
In his brief, appellant argues, AIt is against all logic and completely unreasonable to believe a nine year old girl could be sexually assaulted ten or more times vaginally and anally by a grown man and leave no medically detectable evidence on her person of such alleged assault.@ The evidence appellant adduced at trial crafts an alternative theory of the case in which E.C. fabricated the charges against appellant because she did not like him. Appellant buttresses that argument by highlighting the unlikeliness that P.C. would maintain a sexual relationship with the man accused of molesting her daughter. As a last resort, he contests the allegation that he had anal intercourse with E.C.
Viewed in a light most favorable to the verdict, however, we conclude a rational jury could have determined beyond a reasonable doubt that appellant committed both offenses with which he was charged. Appellant=s arguments invite us to reassess the credibility of the witnesses and the proper weight to be given to the evidence. This is beyond our authority when conducting a factual sufficiency review. The weight to be given to contradictory testimony is within the sole province of the jury. Sandoval v. State, 52 S.W.3d 851, 855 (Tex. App.CHouston [1st Dist.] 2001, pet ref=d) (citing Tex. Code Crim. Proc. Ann. art 36.13 (Vernon Supp. 2005)). E.C.=s own testimony, combined with the expert medical testimony, is strong enough to sustain the finding of guilt beyond a reasonable doubt. And although appellant presented evidence to support his alternative theory, it is not so strong so that the State could not have met its burden of proof. Accordingly, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed January 12, 2006.
Panel consists of Justice Fowler, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The trial court ordered that the sentences run concurrently.
[2] Initials are used to protect the privacy of both complainant and her mother.
[3] Prior to this testimony, E.C. identified the names of body parts on both male and female dolls. She used the term Aprivate part@ to describe both the penis and the vagina.