Scott Justice v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS SCOTT JUSTICE,                                                ) ) No. 08-03-00467-CR Appellant, ) ) Appeal from the v. ) ) 194th District Court THE STATE OF TEXAS,                                     ) ) of Dallas County, Texas Appellee. ) ) (TC# F-0272903-JM) ) O P I N I O N Scott Justice appeals his conviction by a jury of the offense of aggravated sexual assault of a child less than fourteen years of age. The jury assessed his punishment at twenty-five years in the Texas Department of Criminal Justice, Institutional Division. He contends in three points that the evidence is factually insufficient to support his conviction and that the trial court abused its discretion by denying his motion to suppress and allowing into evidence a tape recording of a conversation between himself and the complainant=s mother. We affirm. Justice contends in Point of Error Three that the evidence is factually insufficient to support his conviction. In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We must view all the evidence without the prism of Ain the light most favorable to the prosecution@ construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask, Awhether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the fact finder=s role and unique position--one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may Abelieve all, some, or none of the testimony.@ Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the fact finder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). The indictment alleged that on or about October 1, 2001, Justice intentionally and knowingly caused the complainant=s sexual organ to contact and penetrate his mouth, and that the complainant was not his spouse and was younger than fourteen years of age. The complainant testified that he was fifteen years of age at the time of the trial in August 2003, and that he was born on November 30, 1987. He said that his mother and his father had divorced but continued living together until they separated six years prior to trial. He indicated that he had known Justice, the Appellant, for four or five years. He related that Justice was a high school friend of his father. The complainant said that Justice was initially a good friend to him, taking him on trips to Colorado, San Antonio, Houston, Six Flags, and Grapevine Mills Mall. He indicated that his brother sometimes went with them. He stated that Justice also bought him clothes and video games. He related that he loved him like a dad, that he was his best friend. He testified that all that changed when he and Justice were staying at what he thought was the Hyatt Hotel in Dallas, the one with the big ball. He said that at the time of that trip, he was twelve or thirteen, and that the trip occurred close to October 1, 2001. He related that when he woke up that evening, his pants were pulled down and Justice was standing over him with the complainant=s penis in Justice=s mouth. He said that was not the only time it happened, that it would happen at hotels when they would stay on weekends. He stated that they stayed at hotels for maybe two weekends per month for a year and a half. Overall, he confirmed that it had happened about twenty times. He acknowledged that he had not said anything about it, because he was scared and ashamed. He said that he finally told his mother, who reported it to the police. Latricia Holguin, the complainant=s mother, testified that Justice was her ex-husband=s best friend and that he was a close friend of the family. She said she had been grateful for all the things he had done for her two sons, such as taking them places and buying them things she could not afford. She confirmed that the complainant had told her that Justice was messing with him. She said that the complainant told her Justice touched him and sucked him. She stated that she gave the complainant the option of whether to file charges, and he said he wanted to do so. She also mentioned a recording she had made of conversations she had with Justice, in cooperation with the police department, after the complainant had told her what had been happening. She said that nothing sexual was mentioned on the tape, but that it does refer to Justice giving the complainant alcohol. Mark Peterson, an investigator with the Wise and Jack County District Attorney=s Office, testified concerning his investigation of what had happened to the complainant. He said that he arranged for the complainant=s mother to tape a conversation with Justice and that he had explained to her that it should incorporate that the phone call was in reference to the complainant making an outcry of sexual abuse. Justice denied going on trips with the complainant by himself and denied having ever spent the night with the complainant at the Hyatt in Dallas with the big ball. He specifically denied sexually assaulting either the complainant or the complainant=s brother. As to why he would be accused, he suggested it might have been a falling out between him and the complainant=s mother over money. The complainant=s brother testified that Justice had been a good friend, but that one evening when Justice was spending the night at his house, he awoke to find Justice sucking his penis. He said he did not tell anyone because he was scared. He said he had to tell his mother after the complainant had told her what had happened to him. Justice suggests that the evidence is factually insufficient because he contradicted the complainant=s testimony and because the complainant was a disturbed, troubled child who was seeing a therapist for reasons unrelated to the assault. The testimony of a sexual assault victim alone is sufficient evidence of penetration to support a conviction, even if the victim is a child. Hellums v. State, 831 S.W.2d 545, 547 (Tex.App.--Austin 1992, no pet.). Justice presents no argument or authority supporting his suggestion that evidence is factually insufficient where the complainant is a troubled child who was seeing a therapist for reasons unrelated to the assault and the defendant contradicts his testimony. In any event, we have been unable to find any evidence that the complainant is a troubled child who was seeing a therapist for reasons unrelated to the assault, and Justice does not refer us to any. We hold that the evidence is legally and factually sufficient to support Justice=s conviction. We overrule Point of Error Three. Justice argues in Points of Error One and Two that the trial court erred by overruling his motion to suppress and admitting into evidence the tape recording of Justice made by the complainant=s mother. Justice=s motion to suppress evidence of any statements, written or oral, asserted that they were obtained in violation of his rights as guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, sections 9, 10, and 19 of the Texas Constitution, and Chapter 14 and Article 38.22 of the Texas Code of Criminal Procedure. In argument to the court, he objected to the tape based upon the fact that the police detective had arranged the equipment and encouraged the complainant=s mother to make the tape. He also contended that any probative value of the tape was substantially outweighed by the danger of unfair prejudice. On appeal, he contends for the first time that the tape was inadmissible because the testimony in support of its admission did not meet the seven-prong test set forth in Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim.App. 1977). Where the appellant=s contention on appeal does not comport with his or her objection at trial, nothing is presented for review. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). We note, however, that the State is no longer required to meet the requirements of the seven-prong test; rather, the admissibility of such a tape is governed by Texas Rule of Evidence 901. Angleton v. State, 971 S.W.2d 65, 69 (Tex.Crim.App. 1998). Rule 901 provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. In view of the testimony of complainant=s mother that the tape was a tape of a telephone conversation she had with Justice, we do not accept Justice=s argument that the trial court erred by admitting the statement because the tape was not properly authenticated. Justice presents no argument or authority to suggest that the trial court erred by overruling his motion to suppress or admitting the tape into evidence based upon Rule 901 or the actual objections he made at trial. We overrule Points of Error One and Two. The judgment is affirmed. December 22, 2004 JOHN HILL, Chief Justice (Ret). Before Panel No. 5 Barajas, C.J, McClure, J., and Hill, C.J. (Ret.) Hill, C.J. (Ret.)(Sitting by Assignment) (Do Not Publish)