William Gregory Dale v. State

IN THE
TENTH COURT OF APPEALS

No. 10-11-00380-CR
No. 10-11-00381-CR

WILLIAM GREGORY DALE,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 77th District Court
Freestone County, Texas
Trial Court Nos. 09-194-CR and 09-202-CR

MEMORANDUM OPINION

In two separate cause numbers, appellant, William Gregory Dale, was convicted

of aggravated sexual assault of a child (appellate cause number 10-11-00380-CR), a first-

degree felony, and indecency with a child (appellate cause number 10-11-00381-CR), a

second-degree felony.1 See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), (b)(1), (e),

1Specifically, in appellate cause number 10-11-00380-CR, Dale was charged with “intentionally or
knowingly caus[ing] the penetration of the sexual organ of [M.B.,] a child who was then and there
younger than 14 years of age and not the spouse of the defendant, by the defendant’s finger.” In
appellate cause number 10-11-00381-CR, it was alleged that Dale “with intent to arouse or gratify the
21.11(a)(1), (d) (West 2011 & Supp. 2011). By several issues in both appellate cause

numbers, Dale challenges his convictions. We affirm as modified.

I. BACKGROUND

On Memorial Day weekend 2009, the victim in this case, fifteen-year-old M.B.,

traveled with her best friend, K.I., and K.I.’s family to the family lake house on

Richland-Chambers Lake in Freestone County, Texas.2 M.B. had visited the lake house

many times in the past, and K.I.’s family knew M.B. very well. During the weekend in

question, M.B. and K.I., along with several other family members, participated in

activities, such as tubing and riding four-wheel all-terrain vehicles. Dale was among

the many members of K.I.’s family that visited the lake house that weekend. Dale

visited the lake house frequently, and M.B. knew Dale very well.

The first incident allegedly transpired late on the Sunday night of the holiday

weekend. Typically, the girls would sleep on air mattresses in a converted garage,

which was on the first story of the three-story lake house. On Sunday night, M.B., K.I.,

and several other family members chose to watch a movie in the converted garage.3

According to several witnesses, everyone had been roasting marshmallows late into the

night until they decided to watch a movie at around 2 or 3 o’clock in the morning. M.B.

sexual desire of said defendant, intentionally or knowingly engaged in sexual conduct with [M.B.] by
touching the breast of [M.B.] with the defendant’s hand, a child younger than 17 years of age and not the
spouse of the defendant.”

2 It is undisputed that, at the time of the incidents, M.B. was thirteen years old.

3 M.B. testified that they watched the movie “Are We There Yet?” that night; however, K.I., and

K.I.’s mother and father all testified that they watched “Jurassic Park III” that night and that the girls had
watched “Are We There Yet?” earlier in the weekend. Dale’s trial counsel emphasized these statements
to show inconsistencies in M.B.’s testimony.

Dale v. State Page 2
and K.I. were lying on an air mattress watching the movie. Dale was positioned in

between M.B. and K.I. on the air mattress.4 K.I.’s mother and father were on nearby

couches, K.I.’s grandfather was sitting on the stairs, and the boyfriend of K.I.’s cousin

was also in the room. As Dale states in his brief, “[i]t was very late and the family

began to fall asleep as they watched the movie.”

M.B. testified that the sheets on the air mattress covered her and that the lights in

the room were off. M.B. eventually fell asleep. However, she was awakened by

someone touching her. M.B. stated that Dale was fingering her vagina and that he was

rubbing her breasts. M.B. recalled that when this transpired, the movie was over and

the room was “dark.” According to M.B., Dale stopped when K.I.’s mother “told him to

move” to his air mattress. M.B. denied that she had any disagreements with K.I.’s

family or that she had any reason to make up these allegations. M.B. also testified that

she did not say anything to Dale because she was scared to lose K.I.’s family and that

she tried to act normal.

The next morning, K.I. and her mother remembered M.B. specifically requesting

to ride the four-wheeler and asking Dale to join them. K.I.’s mother insisted that if the

girls were driving the four-wheeler away from the house that an adult had to

accompany them. K.I. testified that, before the girls went out that morning, they ate

breakfast with Dale and other family members. K.I. noted that M.B. playfully pulled

4 There were conflicts in the testimony as to how Dale was positioned between M.B. and K.I.

Some witnesses recalled that Dale was lying in between the girls. K.I.’s mother, who is Dale’s sister,
testified that Dale was sitting upright during the whole movie. In addition, M.B. testified that Dale was
underneath the covers; however, K.I. and her mother and father all testified that Dale was on top of the
covers.

Dale v. State Page 3
Dale’s leg hair with her toes. After eating breakfast, the girls and Dale drove the four-

wheeler to see donkeys at a nearby house. M.B. drove the four-wheeler, and Dale was

positioned in between M.B. and K.I. M.B. was wearing her swim suit, shorts, and a T-

shirt. M.B. alleged that Dale touched her “inappropriately” while they were driving to

see the donkeys. M.B. testified that Dale rubbed her private area and thighs with his

hands while she was driving the four-wheeler and that this had happened before.

However, M.B. denied that Dale touched her breasts while on the four-wheeler. M.B.

asked Dale to switch places with her, but Dale insisted that she “just keep driving.”

Initially, M.B. did not tell her grandparents, whom she was living with at the

time, about the incidents, but she did tell a friend, E.R., about it.5 M.B. later told her

school counselor, Mrs. Nissen, about the incidents. After making the allegations, K.I.

stopped being friends with M.B. because K.I. believed the allegations to be false. In

addition, word about the incidents soon “got around school.” Due to the rumors at

school, M.B. decided to transfer schools.

E.R. remembered that M.B. had told her about the incidents the day after they

had happened. E.R. produced a written statement for police, which stated the

following, in pertinent part:

[M.B.] texted me on Monday evening, May 25th, and told me that over the
weekend, at the lake, something bad had happened to her. . . . And she
had told me she had been touched and she told me that the guy was
[K.I.’s] uncle’s friend. She said the guy was on top of her, and she was too

5 Dale’s counsel emphasized M.B.’s living situation at trial. In particular, M.B. testified that her

father was in prison; that her mother lived in Mississippi and was not active in her life; that she fought
occasionally with her grandparents about rules; and that she had transferred schools several times. Dale
introduced several comments made by M.B. on her MySpace page, which documented her living
situation. One of the comments made by M.B. on her MySpace page is the basis for one of Dale’s issues.

Dale v. State Page 4
 scared to tell him to stop. She said she was also too scared to tell an adult.
She said it happened at [K.I.’s] lake house.”

E.R. later clarified that she made a mistake in her written statement. She noted that

M.B. told her that Dale had committed the alleged acts, not Dale’s friend.

Regarding the movie incident, K.I.’s mother testified that Dale was simply

“goofing with the girls” while they were lying on the air mattress and that he told the

girls to “Wake up! Watch the movie!” K.I.’s mother noted that she could see that the

girls were under the covers but that Dale was not. K.I.’s mother denied seeing Dale

touch M.B. inappropriately. Additionally, K.I. did not recall seeing Dale ever rub M.B.’s

thighs or touching M.B.’s breasts. K.I. did note that M.B. acted normal the entire

weekend, except for one comment where M.B. told K.I. that her father was going to buy

her a lake house and a sports car—something K.I. found odd because M.B.’s father is in

prison. K.I.’s father also testified that he did not see anything unusual occur that

weekend, though he admitted that he started to fall asleep during the movie.

At the conclusion of the evidence, the jury convicted Dale in both cause numbers

and assessed punishment at: (1) fifteen years’ confinement with a $10,000 fine in

appellate cause number 10-11-00380-CR; and (2) six years’ confinement with a $10,000

fine in appellate cause number 10-11-00381-CR. The trial court ordered both sentences

to run concurrently. This appeal followed.

II. THE TRIAL COURT’S EXCLUSION OF EVIDENCE FROM THE VICTIM’S MYSPACE
PAGE

In his second issue in appellate cause number 10-11-00380-CR and in his first

issue in appellate cause number 10-11-00381-CR, Dale argues that the trial court erred in

Dale v. State Page 5
refusing to admit an entry M.B. made on her MySpace page where she referred to

herself as a “bitch/whore.” In particular, Dale alleges that the admission of the

statement would not have violated Texas Rule of Evidence 412 and that the trial court’s

refusal to admit the statement limited his cross-examination of M.B. See TEX. R. EVID.

412. We disagree.

A. Standard of Review

We review a trial court’s decision to exclude evidence under an abuse-of-

discretion standard. Thomas v. State, 137 S.W.3d 792, 794 (Tex. App—Waco 2004, no

pet.) (citing Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)). An abuse of

discretion occurred when a trial court’s decision is so clearly wrong that it lies outside

the “zone of reasonable disagreement.” Id. (citing Gonzalez v. State, 117 S.W.3d 831, 839

(Tex. Crim. App. 2003); Burks v. State, 40 S.W.3d 698, 700 (Tex. App.—Waco 2001, no

pet.)).

B. Applicable Law

The Sixth Amendment protects the defendant’s right not only to confront the

witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S.

308, 316, 94 S. Ct. 1105, 1110, 39 L .Ed. 2d 347 (1974). “The exposure of a witness’

motivation in testifying is a proper and important function of the constitutionally

protected right of cross-examination.” Davis, 415 U.S. at 316-17, 94 S. Ct. at 1110. The

accused is entitled to great latitude to show a witness’ bias or motive to falsify his

testimony. See Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).

Dale v. State Page 6
 However, the right of cross-examination is not unlimited. The trial court retains

wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van

Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986). The trial court

must carefully consider the probative value of the evidence and weigh it against the

risks of admission. See Hodge, 631 S.W.2d at 758. These potential risks include “the

possibility of undue prejudice, embarrassment or harassment to either a witness or a

party, the possibility of misleading or confusing a jury, and the possibility of undue

delay or waste of time.” Id.; see also Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App.

1993).

C. Discussion

The particular statement which Dale complains about is M.B.’s MySpace message

to E.R. stating: “Thanks for turning everybody against me . . . ‘cause I’m a

bitch/whore.” Texas Rule of Evidence 412(a) specifically states that: “In a prosecution

for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or

aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of

an alleged victim of such crime is not admissible.” TEX. R. EVID. 412(a). Subsection (b)

of rule 412, however, outlines some exceptions in which evidence of specific instances of

past sexual behavior of the victim may be admitted in a criminal trial. Id. at R. 412(b).

In particular, rule 412(b) provides that:

In a prosecution for sexual assault or aggravated sexual assault, or
attempt to commit sexual assault or aggravated sexual assault, evidence of
specific instances of an alleged victim’s past sexual behavior is also not
admissible, unless:

Dale v. State Page 7
 (1) such evidence is admitted in accordance with paragraphs (c) and
(d) of this rule;

(2) it is evidence:

(A) that is necessary to rebut or explain scientific or medical
evidence offered by the State;

(B) of past sexual behavior with the accused and is offered by the
accused upon the issue of whether the alleged victim consented
to the sexual behavior which is the basis of the offense charged;

(C) that relates to the motive or bias of the alleged victim;

(D) is admissible under Rule 609; or

(E) that is constitutionally required to be admitted; and

(3) its probative value outweighs the danger of unfair prejudice.

Id.

“Sexual behavior” is not defined in the rules of evidence. See Thomas, 137 S.W.3d

at 794-95. Nevertheless, this Court noted that, prior to the codification of rule 412, the

Court of Criminal Appeals reviewed the definition of “sexual conduct” in former

section 22.065 of the Texas Penal Code, the precursor to rule 412.6 See id. (citing Ex parte

Rose, 704 S.W.2d 751, 756 (Tex. Crim. App. 1984) (citing Act of May 27, 1983, 68th Leg.,

R.S., ch. 977, § 4, 1983 Tex. Gen. Laws 5311 (amended 1983) (current version at TEX. R.

6 Former section 22.065 of the Texas Penal Code states:

(a) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of
the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct may
be admitted under Sections 22.011 and 22.021 of this code only if, and only to the extent
that, the judge finds that the evidence is material to a fact at issue in the case and that its
inflammatory or prejudicial nature does not outweigh its probative value.

Act of May 27, 1983, 68th Leg., R.S., ch. 977, § 4, 1983 Tex. Gen. Laws 5311 (amended 1983) (current
version at TEX. R. EVID. 412).

Dale v. State Page 8
EVID. 412))). The Court found “sexual” to mean “of or pertaining to sex; sexual

matters.” Id. (citing Ex parte Rose, 704 S.W.2d at 756).

In the present case, M.B. referred to herself as a “bitch/whore” on her MySpace

page. The plain and ordinary meaning of the term “whore” is “a woman who engages

in sexual acts for money.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 1351 (10th ed.

1993). On the other hand, the plain and ordinary meaning of the term “bitch” is “a

lewd or immoral woman.” Id. at 117. We believe that these terms are commonly used

to reference “sexual matters,” which would violate not only the agreed-upon motion in

limine between the parties in this case but also rule 412. See TEX. R. EVID. 412(a).

In addition, it is our opinion that M.B.’s statement on her MySpace page does not

fall within any of the exceptions listed in rule 412(b). See id. at R. 412(b). Clearly,

admission of the statement was not necessary to explain or rebut scientific or medical

evidence, as the State did not offer any such evidence. In addition, the statement does

not concern the history between Dale and M.B., nor does it go to the issue of consent.

Furthermore, this statement would not be admissible under rule 609 because it does not

concern anything about M.B. being convicted of a crime. See TEX. R. EVID. 609. And, the

statement is not constitutionally required to be admitted as it does not invoke any sort

of constitutional issue.

Finally, we fail to see how this statement was necessary to demonstrate motive or

bias. See Hodge, 631 S.W.2d at 758. Dale had ample opportunity to cross-examine M.B.

to discern motive or bias. Instead, this statement likely would have caused undue

prejudice and embarrassment to M.B. and likely would have mislead, confused, and

Dale v. State Page 9
inflamed the jury. See Chambers, 866 S.W.2d at 27; see also Hodge, 631 S.W.2d at 758. As

such, we cannot say that the trial court’s decision to exclude this statement was outside

the zone of reasonable disagreement as to constitute error. See Thomas, 137 S.W.3d at

794; see also Gonzalez, 117 S.W.3d at 839; Burks, 40 S.W.3d at 700. Furthermore, we

cannot conclude that Dale’s right of confrontation was violated by the trial court’s

exclusion of this statement. See Davis, 415 U.S. at 316-17, 94 S. Ct. at 1110. Thus, we

overrule Dale’s second issue in appellate cause number 10-11-00380-CR and his first

issue in appellate cause number 10-11-00381-CR.

III. DALE’S OBJECTION DURING THE STATE’S CLOSING ARGUMENT

In his third issue in appellate cause number 10-11-00380-CR and in his second

issue in appellate cause number 10-11-00381-CR, Dale argues that the trial court erred in

overruling his objection to the State’s closing argument pertaining to his alleged failure

to adduce impeaching evidence against the complainant. In particular, Dale contends

that the complained-of statements made by the State constituted an improper jury

argument.

A. Applicable Law

Proper jury argument must encompass one of the following: (1) a summation of

the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3)

an answer to the opposing counsel’s argument; or (4) a plea for law enforcement. Brown

v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Guidry v. State, 9 S.W.3d 133, 154

(Tex. Crim. App. 1999). To determine whether a party’s argument properly falls within

one of these categories, we must consider the argument in light of the entire record.

Dale v. State Page 10
Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); see

Brown, 270 S.W.3d at 570 (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App.

1988)).

B. Discussion

During the State’s closing argument, the following exchange took place:

State’s counsel: And you heard from many different witnesses. She
[M.B.] didn’t have any problem making friends. She
had a lot of friends. She’s not a loner. She
participated in sports, other things. She talked about
how she goes to Southwest High there in Fort Worth
now. She’s in AP classes. AP classes, they’re not the
mainstream classes. Good kids are in AP classes.
And one thing I’ll say is you never heard one school
official get in here—you didn’t hear one person from
J.T. Stevens, (inaudible) science, McClain, the classical
school she went to or Southwest come in here and
say, “[M.B.], she’s a bad kid. We have a lot of
problems with her.”

Defense counsel: Your Honor, we can’t do that. We have a motion in
limine about those kind[s] of things. I object.

THE COURT: Overruled.

On appeal, Dale argues that the prosecutor’s argument was not a reasonable

deduction from the evidence because he was speculating about “what these absent

witnesses would testify.” Dale also contends that M.B.’s credibility in this case was the

paramount issue, and the prosecutor’s statement constituted improper bolstering.

First, we note that Dale did not object on the ground of bolstering. Thus, we do

not find Dale’s bolstering argument to be preserved for appeal. See TEX. R. APP. P.

33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998) (explaining that in order

Dale v. State Page 11
to preserve error, a complainant must make a timely, specific objection and obtain an

adverse ruling on the objection from the trial court). Second, we disagree with Dale’s

contention that the prosecutor’s statements were not a reasonable deduction from the

evidence. Here, Dale’s trial counsel asked repeated questions about M.B.’s living

situation, and he impeached her with comments she made on her MySpace page, which

indicated that she was often mad about the rules of her grandparents and contained

language that some would deem to be vulgar. Dale’s trial counsel also made several

inquiries about how many times M.B. transferred schools as if to insinuate that M.B.

was a troublesome child with an unstable family life. However, no one at trial

specifically testified that M.B. was a “bad kid” or that others had “a lot of problems

with her.” In fact, the testimony revealed that M.B. was in AP classes and generally

made good grades.

We find that prosecutor’s comment to be a proper summation of the absence of

impeaching evidence regarding whether M.B. was a “bad kid.” See Brown, 270 S.W.3d

at 570; Guidry, 9 S.W.3d at 154. And, it is noteworthy to mention that Dale concedes

that “a prosecutor may comment on the absence of impeaching evidence.” See Adams v.

State, 813 S.W.2d 698, 700 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d) (noting that,

in arguing to the jury, counsel may draw from facts in evidence all inferences that are

reasonable, fair, and legitimate, and will be afforded great latitude without limitation in

this respect so long as the argument is supported by the evidence and offered in good

faith) (citing Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977)); see also Jackson

v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (holding that the State may comment

Dale v. State Page 12
on an appellant’s failure to present evidence in his favor, as long as the remarks do not

fault the defendant for failing to testify). Because we find that the prosecutor’s

statements about the absence of evidence indicating that M.B. was a “bad kid” to be a

proper summation of the evidence, we cannot say that the trial court erred in overruling

Dale’s objection. See Brown, 270 S.W.3d at 570; Guidry, 9 S.W.3d at 154; see also Gaddis v.

State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (noting that a “jury argument must be

extreme or manifestly improper, or inject new and harmful facts into evidence to

constitute reversible error”). Accordingly, we overrule Dale’s third issue in appellate

cause number 10-11-00380-CR and his second issue in appellate cause number 10-11-

00381-CR.

IV. THE STATE’S OBJECTION TO DEFENSE COUNSEL’S STATEMENTS REGARDING
DALE’S DECISION TO NOT TESTIFY

In his fourth issue in appellate cause number 10-11-00380-CR and in his third

issue in appellate cause number 10-11-00381-CR, Dale contends that the trial court

reversibly erred in sustaining the State’s objection regarding his trial counsel’s

statements during closing argument about his recommendation that Dale not testify.

The State counters that the trial court properly sustained the objection as Dale’s closing

argument ventured outside the record. In the alternative, the State contends that the

alleged error, if any, is harmless.

During defense counsel’s closing argument, the following exchange took place:

Defense Counsel: Let me talk to you about the Court’s charge real
quick. The Court’s charge means the Court’s
instructions. If you read that, you read it to you. I’m
certainly not going to read it again, but there are some

Dale v. State Page 13
 very important things in here, one of the toughest
decisions that a lawyer has to make is whether to give
advice to—to his client as to whether or not—what
position he feels like the State is in and the case is in,
and to determine whether or not to testify or not
testify.

And he determined, under his rights under the
constitution, that he wouldn’t; basically my
recommendation.

State’s Counsel: Objection, Your Honor, he’s talking about attorney—
what he may have said or not said to him.

Defense Counsel: I’m sorry.

THE COURT: I’m going to sustain that.

Dale’s defense counsel then stated that:

It was determined that there was not [sic] need for him [Dale] to
testify . . . . And you folks, either by your silence, when I asked the
question, or some of you, specifically when I asked you, said you
wouldn’t hold that against somebody if they determined; and if they had
a lawyer, that they wouldn’t testify.

Dale construes the State’s objection as pertaining to confidential attorney-client

communications, not argument outside the record. Dale argues that “defense counsel

was stating what he advised Appellant concerning his right to testify and was not

stating anything confidential that his client told him.” And because the trial court

sustained the State’s objection allegedly on the wrong ground, Dale asserts that the

error is harmful and warrants reversal.

Assuming without deciding that Dale is correct in arguing that the trial court

sustained the State’s objection on the wrong ground, we conclude that Dale has not

demonstrated that this alleged error had a substantial and injurious effect or influenced

Dale v. State Page 14
the jury’s verdict.7 See TEX. R. APP. P. 44.2(b) (providing that a non-constitutional error

“that does not affect substantial rights must be disregarded”); see also Solomon v. State,

49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (stating that an error does not affect a

substantial right if we have “fair assurance that the error did not influence the jury, or

had but a slight effect”); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)

(same). We therefore conclude that the error, if any, is harmless. See TEX. R. APP. P.

44.2(b). Accordingly, Dale’s fourth issue in appellate cause number 10-11-00380-CR and

third issue in appellate cause number 10-11-00381-CR are overruled.

V. SUFFICIENCY OF THE EVIDENCE SUPPORTING DALE’S CONVICTION FOR
AGGRAVATED SEXUAL ASSAULT

In his first issue in appellate cause number 10-11-00380-CR, Dale asserts that the

evidence supporting his conviction for aggravated sexual assault is insufficient. 8 We

disagree.

A. Standard of Review

The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the

7 Dale acknowledges that the alleged error is non-constitutional error; thus, we analyze the
alleged error within the context of Texas Rule of Appellate Procedure 44.2. See TEX. R. APP. P. 44.2.

8 Dale did not challenge the sufficiency of the evidence supporting his conviction for indecency
with a child in appellate cause number 10-11-00381-CR.

Dale v. State Page 15
 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. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2792-93. Further, direct and circumstantial evidence are treated equally:

"Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the

factfinder is entitled to judge the credibility of witnesses and can choose to believe all,

some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically-correct jury charge,

the State was required to prove beyond a reasonable doubt that Dale (1) intentionally or

knowingly (2) “cause[d] the penetration of the anus or sexual organ of a child by any

Dale v. State Page 16
means.”9 TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). “A person acts intentionally, or

with intent, with respect to the nature of his conduct or to a result of his conduct when

it is his conscious objective or desire to engage in the conduct or cause the result.” Id. §

6.03(a) (West 2011). “A person acts knowingly with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result.” Id. §

6.03(b). Intent may “be inferred from circumstantial evidence[,] such as acts, words,

and the conduct of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004); see Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Ledesma v. State, 677

S.W.2d 529, 531 (Tex. Crim. App. 1984) (noting that the requisite culpable mental state

may be inferred from the surrounding circumstances).

B. Applicable Law

Ordinarily, the testimony of a child victim is sufficient to support a conviction for

aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 2005); Perez

v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled in part on

other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008); Karnes v. State,

873 S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.) (“[T]he testimony of a sexual assault

victim alone is sufficient evidence of penetration to support a conviction, even if the

victim is a child.”); see also Fernandez v. State, No. 13-09-00168-CR, 2010 Tex. App. LEXIS

6741, at *11 (Tex. App.—Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not

designated for publication). Further, courts give wide latitude to the testimony given

9 A “child” is defined as “a person younger than 17 years of age.” TEX. PENAL CODE ANN. §§
22.011(c), 22.021(b)(1) (West 2011 & Supp. 2011).

Dale v. State Page 17
by child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim.

App. 1990) (en banc). “The victim’s description of what happened to [her] need not be

precise, and [she] is not expected to express [herself] at the same level of sophistication

as an adult.” Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no

pet.) (citing Villalon, 791 S.W.2d at 134).

C. Discussion

Here, M.B. testified that Dale “fingered” or, in other words, penetrated her

vagina with his finger on the evening that she, K.I., and several of K.I.’s family members

were watching a movie in the converted garage of the lake house. M.B. also testified

that she was thirteen years old when the incident transpired and that Dale was married

to someone else. This testimony alone would support Dale’s conviction for aggravated

sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Perez, 113 S.W.3d at

838; Karnes, 873 S.W.2d at 96; see also Fernandez, 2010 Tex. App. LEXIS 6741, at *11.

Nevertheless, K.I. testified that she thought that M.B. was lying, and K.I.’s

mother and father both testified that they did not see anything out of the ordinary that

night. Further, K.I.’s mother stated that she did not believe that her brother, Dale, could

have done what was alleged. Despite this testimony, the record indicates that everyone

watched the movie at 2 or 3 o’clock in the morning after a long day of swimming, riding

jet skis, riding four-wheelers, and roasting marshmallows. In addition, the record

contains testimony that several people fell asleep during the movie, though K.I.’s

mother insisted that she stayed awake for the entire movie and she saw everything that

was going on in the room. In any event, as noted earlier, it is within the province of the

Dale v. State Page 18
jury to resolve conflicts in the evidence, and we are to defer to the jury’s resolution of

those conflicts. See Chambers, 805 S.W.2d at 461; see also Jackson, 443 U.S. at 326, 99 S. Ct.

at 2792-93; Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State,

316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must give

deference to a jury’s decision regarding what weight to give contradictory testimonial

evidence because the decision is most likely based on an evaluation of credibility and

demeanor, which the jury is in a better position to judge.”).

Therefore, viewing the evidence in the light most favorable to the jury’s verdict,

we conclude that a rational juror could have concluded that Dale intentionally or

knowingly caused the penetration of M.B.’s vagina with his finger and that M.B. was

thirteen-year-old child at the time of the incident. See TEX. PENAL CODE ANN. §

22.021(a)(1)(B)(i); see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Hooper, 214

S.W.3d at 13. Accordingly, we hold that the evidence is sufficient to support Dale’s

conviction for aggravated sexual assault of a child. See Jackson, 443 U.S. at 318-19, 99 S.

Ct. at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. Dale’s first issue in

appellate cause number 10-11-00380-CR is overruled.

VI. MODIFICATION OF THE TRIAL COURT’S JUDGMENT IN APPELLATE CAUSE
NUMBER 10-11-00381-CR

In appellate cause number 10-11-00381-CR, the trial court’s judgment mistakenly

references section 22.11 of the penal code, a section of the penal code addressing

harassment by a person in a correctional facility and harassment of public servants. See

TEX. PENAL CODE ANN. § 22.11 (West 2011). However, the judgment specifically notes

Dale v. State Page 19
that Dale was convicted of indecency with a child in appellate cause number 10-11-

00381-CR, and the correct statutory provision for that offense is section 21.11 of the

penal code. See id. § 21.11. Because we have the necessary data and evidence for

reformation, we modify the trial court’s judgment to reflect the correct statute for the

offense—Texas Penal Code section 21.11. See id.; see also TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

VII. CONCLUSION

Having overruled all of Dale’s issues on appeal, we affirm the judgment of the

trial court as modified.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed April 18, 2012
Do not publish
[CR25]

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