Thomas Earl Nelson v. State

IN THE TENTH COURT OF APPEALS No. 10-02-00302-CR Thomas Earl Nelson, Appellant v. The State of Texas, Appellee From the 85th District Court Brazos County, Texas Trial Court # 29081-85 MEMORANDUM Opinion This appeal concerns a conviction for aggravated sexual assault of a child. We will affirm. In two issues, Appellant contends that the evidence that he penetrated the victim’s female sexual organ was insufficient. The Texas Penal Code makes it an offense for a person intentionally or knowingly to “cause[] the penetration of the . . . female sexual organ of a child by any means.” Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (Vernon 2003). The indictment alleged that Appellant “intentionally and knowingly cause[d] the penetration of the female sexual organ of [the victim], a child younger than 14 years of age . . . by inserting his penis.” The charge instructed the jury in the same terms. On direct examination, the victim testified that when she was ten years old, Appellant picked her up, put her on the bed, lay on top of her, pulled her underwear down, and put his penis inside of her. On cross-examination, she acknowledged that she had previously stated that Appellant’s penis went inside her “private.” Appellant testified that he did not assault the victim. “Private” signifies the female sexual organ. See Murphy v. State, 4 S.W.3d 926, 927-29 (Tex. App.—Waco 1999, pet. ref’d).[1] 1. In Appellant’s first issue, he contends that the evidence was legally insufficient. We will overrule Appellant’s issue. A “legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.” Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. See also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). Viewing this evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant penetrated the victim’s female sexual organ. Accordingly, we overrule Appellant’s first issue. 2. In Appellant’s second issue, he contends that the evidence was factually insufficient. Appellant argues that “the state’s proof of an essential element or ‘vital fact’ (female sexual organ) is simply too weak to withstand a factual sufficiency inquiry” (citing Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001)). We will overrule Appellant’s issue. 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 the Ain the light most favorable to the prosecution@ construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted). We must also remain cognizant of the factfinder=s role and unique positionCone that the reviewing court is unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). 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 factually insufficient as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Viewing the evidence in a neutral light, and giving deference to the jury’s credibility determinations, the evidence is not too weak to support the finding of guilt beyond a reasonable doubt. Accordingly, we overrule Appellant’s second issue. Having overruled both of Appellant’s issues, we affirm the judgment. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Opinion delivered and filed June 16, 2004 Affirmed Do not publish [CRPM] [1] See also, e.g., Perez v. State, No. 01-99-00911-CR, 2003 Tex. App. LEXIS 3155, at *3-*4 (Tex. App.—Houston [1st Dist.] Apr. 10, 2003, pet. ref’d); Bottenfield v. State, 77 S.W.3d 349, 353 (Tex. App.—Fort Worth 2002, pet. ref’d), cert. denied, 539 U.S. 916, 123 S. Ct. 2275, 156 L. Ed. 2d 133 (2003); Robison v. State, 35 S.W.3d 257, 262 (Tex. App.—Texarkana 2000, pet. ref’d); Beheler v. State, 3 S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet. ref’d); Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.—Fort Worth 1992, pet. ref’d).