Darryl Ray Houston v. State

Affirmed and Memorandum Opinion filed August 2, 2007 Affirmed and Memorandum Opinion filed August 2, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00459-CR ____________ DARRYL RAY HOUSTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1011151 M E M O R A N D U M  O P I N I O N Appellant Darryl Ray Houston challenges the legal and factual sufficiency of the evidence to support his conviction for sexual assault of a child. We affirm. I. Factual and Procedural Background Appellant is the natural father of the complainant P.C.. Appellant had virtually no relationship with his daughter until she was a teenager. In 2002, when P.C. was fourteen years old, appellant came back into his daughter=s life and indicated he wanted to establish a relationship with her. P.C.=s mother was agreeable to P.C. getting to know her father and allowed the two to take outings together. When appellant would retrieve P.C. from her mother=s house, he usually would take her to his house, his girlfriend=s house, his mother=s house, or to his sister=s house. Around May 2003, appellant picked P.C. up from her mother=s house, dropped his girlfriend off at her house, and stopped on the side of a street in an unknown location. Appellant then turned toward P.C., and placed his hand on P.C.=s vagina outside of her clothing. P.C. pushed his hand away and told him to stop. Appellant complied for the moment, but then drove to another unknown location, parked the car again, and again touched P.C. Shortly thereafter, appellant drove to a nearby parking lot. After parking the car, appellant turned toward P.C., reached over her, and reclined her car seat. He then placed his hand underneath her shorts, and P.C. struggled and pulled his hand away. Initially, P.C. did not tell anyone about this incident. Thereafter, on a few occasions when P.C. and appellant were alone at appellant=s girlfriend=s house, appellant forced P.C. to remove her clothing and inappropriately touched her. On these occasions, appellant informed P.C. that he was Atrying to see what [she] would do if someone actually tried to touch her or rape her.@ Appellant touched P.C.=s vagina when he made these comments, and during one instance, appellant placed his finger inside of her vagina. Appellant also forced P.C. to remove her clothing, and inserted his penis in her bottom. P.C. told appellant to stop because it Aburned@ and Ahurt.@ On August 1, 2003, shortly before P.C.=s sixteenth birthday, appellant took P.C. to his home. There, appellant told P.C. that he had just broken up with his girlfriend, and was living by himself. Appellant told P.C. to come to his bedroom and informed her that she was going to get a Awhipping.@ Appellant had given P.C. Awhippings@ before and would make her remove only her pants. This time, however, appellant told her to remove all of her clothing and lie down on the bed. P.C. resisted at first, but complied after appellant displayed a belt and told her that he would whip her if she refused. Even though P.C. complied, appellant whipped her twice on the back of her legs. As he whipped her, appellant=s girlfriend drove up to the house. Appellant stopped momentarily to go outside and talk to his girlfriend. Shortly thereafter, appellant=s girlfriend left, and appellant told P.C. that he was going to take her home. They got into appellant=s car, but instead of going to P.C.=s home, appellant went to a store, purchased some beer, and took P.C. back to his house. Appellant left but there was no telephone in the house for P.C. to call her mother (or anyone else) to come and pick her up. While appellant was gone, P.C. fell asleep on the living room floor. Later, P.C. awoke only to realize that appellant was on top of her and was having sexual intercourse with her. P.C. tried to push appellant off of her, but he forced her to remain still. Very scared and angry, P.C. continued to struggle with appellant. Appellant finally removed himself, and went to his bedroom. P.C. eventually fell asleep. The following morning, appellant told P.C. that he would take her home and told her not to tell anyone what had happened. Immediately after arriving at her own home, P.C. went to her bedroom and cried. P.C. told her fourteen-year old friend what had happened and the friend encouraged P.C. to tell her mother about the assault, but P.C. refused because she was too scared to tell. After this incident, P.C. refused to go to appellant=s home or see him anymore, which prompted P.C.=s mother to ask appellant what he had done to P.C.. Appellant replied that he had not done anything and that A[P.C.] was crazy.@ Meanwhile, at school, P.C.=s teachers began to notice a marked change in P.C.=s attitude and demeanor. P.C. began using profanity and began acting out-of character, demonstrating a bad attitude and misbehaving in class. P.C.=s behavior at home changed, too. Her mother noticed that she seemed angry all the time. In March 2004, P.C.=s tenth grade English teacher gave the class a writing assignment in which she instructed the students to write about an instance in their lives that they remembered the most. P.C. turned in a poem entitled, AThe Day I Almost Got Raped.@ After reading the poem, the teacher reported the disturbing writing to several members of the school faculty, including another teacher, a school counselor, the school nurse, and the assistant principal. The school administrators called P.C. to a conference at which they explained the difference between actually being raped and almost being raped. During the conference, P.C. informed the administrators that the incident she referred to in her writing was an Aactual@ rape. The school called P.C.=s mother, the police, and Children=s Protective Services. The police came to the school and took statements from P.C., as well as the school administrators who attended the conference. When P.C.=s mother arrived, the school administrators met with her and P.C. in another conference. During this second conference, P.C. appeared withdrawn, reluctant to answer further questions, and refused to make eye contact with anyone. However, P.C. described the incidents with appellant. She was then taken to the Children=s Assessment Center for a videotaped interview. Houston Police Officer Shawn Valenta, who was investigating the case, contacted appellant to inform him of the allegations against him and asked if he would make a statement. Appellant voluntarily made a statement in which he denied all of the allegations. Appellant was arrested and charged with the felony offense of sexual assault of a child. Though he pled Anot guilty,@ a jury found appellant guilty. During the punishment phase, appellant stipulated that he previously had been convicted of aggravated assault of a police officer, unauthorized use of a motor vehicle (twice), possession of a controlled substance, unlawful carrying of a weapon, assault, burglary of a vehicle (twice), auto theft (three times), and driving while intoxicated. Appellant=s niece also testified during the punishment phase, and stated that appellant had sexually assaulted her when she was fifteen years old. The trial court sentenced appellant to fifty years= confinement. II. Issues and Analysis In four issues appellant asserts two legal sufficiency challenges (first and third points), and two factual sufficiency challenges (second and fourth points). A. Legal Sufficiency When evaluating legal sufficiency challenges, we view the 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App .2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App .1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). We view all of the evidence admitted at trial, and resolve any inconsistencies in the evidence in favor of the verdict. Id. Complainant=s Credibility Appellant asserts, in his first issue, that the evidence is legally insufficient to support his conviction because P.C.=s testimony lacked credibility. Appellant argues that P.C.=s testimony was not corroborated by any other witness or by any physical evidence, which he claims undermines the credibility of her testimony. Appellant contends that P.C.=s behavioral problems, such as moodiness or rudeness, are characteristics of any typical teenage girl and are not evidence that she was sexually assaulted. Appellant further states that P.C.=s testimony is contrary to his statements denying the sexual abuse. A person commits sexual assault of a child if he intentionally or knowingly causes the penetration of the female sexual organ of a child by any means. Tex. Penal Code Ann. ' 22.011(a)(2)(A) (Vernon Supp. 2006). In the present case, the indictment alleged that appellant intentionally and knowingly caused the penetration of the female sexual organ of P.C., a person younger than seventeen years of age, by placing his sexual organ inside of her sexual organ. P.C. testified at trial, identified appellant as the assailant, and described how he had sexually assaulted her. The evidence reflects that soon after appellant entered P.C.=s life, he engaged in several instances of inappropriate sexual contact with P.C., including sexual intercourse. P.C. not only testified that appellant forced her to engage in sexual intercourse, she gave a detailed description of the assault for which he was charged, stating that appellant moved back and forth, while she tried to push him off of her. The jury was the sole trier of fact and it was the jury=s province to judge the credibility of the witnesses, reconcile the conflicts in the testimony, and accept or reject any or all of the evidence on either side. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). As the factfinder, the jury could have believed P.C.=s testimony and wholly disbelieved any or all of the defense=s evidence. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Marc v. State, 166 S.W.3d 767 (Tex. App.CFort Worth 2005, pet. ref'd) (holding that jury could have believed victim so as to support conviction for aggravated sexual assault even though defendant argued that the victim=s veracity was suspect because she was a prostitute and drug addict and convicted felon). Furthermore, the testimony of P.C., standing alone, is sufficient to support appellant=s conviction of aggravated sexual assault of a child. See Satterwhite v. State, 499 S.W.2d 314, 315 (Tex. Crim. App. 1973) (holding that victim=s testimony that appellant placed Ahis male organ into her private parts@ was sufficient to sustain conviction); Sanchez v. State, 479 S.W.2d 933, 940 (Tex. Crim. App. 1972) (holding that victim=s affirmative answer to question about whether defendant Aput his private part in your private part,@ along with corroborating medical testimony, was sufficient to establish penetration); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref'd) (stating that the testimony of a victim, standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault); West v. State, 121 S.W.3d 95, 111 (Tex. App.CFort Worth 2003, pet. ref=d) (stating that victim=s testimony is sufficient to sustain conviction of sexual assault); Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App.CFort Worth 1994, pet. ref=d) (holding that a child victim=s outcry statement alone can be sufficient to support a conviction for aggravated sexual assault). Moreover, P.C.=s mother and P.C.=s English teacher provided corroborating evidence. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense. Accordingly, we overrule appellant=s first issue. Commission of Offense Within the State of Texas In his third related issue, appellant contends the evidence is legally insufficient to support his conviction because the State failed to prove that any element of the offense took place within the State of Texas. Appellant relies entirely on P.C.=s testimony that she did not know Aexactly@ where appellant lived.[1] Although P.C. lacked knowledge of the precise location of appellant=s residence, she testified it was somewhere in Houston, Texas. P.C.=s mother also testified that it was her understanding that appellant lived somewhere on Yellowstone Street in Houston. Moreover, appellant cites no evidence that his home or any other location where he was alleged to have committed these acts is outside the territorial jurisdiction of this state. Based upon the testimony of P.C. and her mother, we conclude that any rational trier of fact could find beyond a reasonable doubt that the offense occurred in Texas. See Lane v. State, 174 S.W.3d 376, 387 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (finding that the evidence was legally and factually sufficient to show that the elements of the offense of aggravated sexual assault occurred in Texas, where child complainant testified that some of the assaults occurred at defendant=s home, and some at her mother=s home, both of which were located in Texas, and defendant cited no evidence to prove that his home was outside of Texas). Accordingly, we conclude that the evidence is legally sufficient to support appellant=s conviction, and we overrule appellant=s third issue. B. Factual Sufficiency When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. See Watson v. State, 204 S.W.3d 404, 408 (Tex. Crim. App. 2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact‑finder=s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact‑finder's determination is manifestly unjust. Id.; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 408. In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court Aharbor a subjective level of reasonable doubt to overturn [the] conviction.@ Id. at 410. An appellate court cannot conclude that a conviction is Aclearly wrong@ or Amanifestly injust@ simply because it would have decided the case differently than the jury or because it disagrees with the jury=s resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the judgment of the fact‑finder. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must give due deference to the fact‑finder=s determinations, Aparticularly those determinations concerning the weight and credibility of the evidence.@ Id. In addressing factual sufficiency, the reviewing court generally includes a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.2003). Moreover, a court reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). Complainant=s Credibility In his second issue, appellant contends that the evidence is factually insufficient to support his conviction because P.C.=s testimony lacked credibility. To support this argument, appellant urges that P.C.=s testimony was not corroborated by any other witness, or by any physical evidence, and thus her testimony was not credible. This alleged lack of credibility, appellant argues, renders the evidence supporting his conviction factually insufficient. Appellant contends that P.C.=s behavioral problems and moodiness are merely characteristics of any typical teenage girl. Appellant further states that P.C.=s testimony is contrary to his statements denying the sexual assaults. P.C. testified that on August 1, 2003, when she was fifteen years old, appellant sexually assaulted her on his living room floor. The testimony of the child complainant alone is sufficient to support a conviction. Tex. Code Crim. Proc. Ann. Art. 38.07(A) (Vernon Pamph. Supp. 2004). In this case, however, P.C.=s mother offered evidence that supported P.C.=s account of the incidents in that she testified that P.C. spent the night at appellant=s home on that date, and thereafter refused to see him again. Though appellant denied P.C.=s allegations, the jury was free to weigh the contradictory testimony provided by P.C. and choose to believe it and not believe appellant=s denial. We conclude that the evidence is factually sufficient to support appellant=s conviction, and we overrule appellant=s second issue. Commission of Offense Within the State of Texas In his fourth issue, appellant contends that the evidence is legally insufficient because the State failed to prove that any element of the charged offense took place within the State of Texas. According to appellant, P.C.=s lack of knowledge of Aexactly@ where he lived renders the evidence factually insufficient to support his conviction. For the same reasons as discussed above in relation to appellant=s legal-sufficiency challenge to proof of this element, we conclude that the evidence is factually sufficient to show that the offense was committed in the State of Texas. Contrary to appellant=s apparent belief, the State was not required to show the exact address where the sexual assault occurred. The State demonstrated by the testimony of P.C. and P.C.=s mother that appellant resided in Houston, Harris County, Texas, and that the assault took place at his residence. In viewing all the evidence in a neutral light, we cannot conclude that the evidence is so weak on this point that the fact‑finder=s determination is clearly wrong or manifestly unjust. See Johnson, 23 S.W.3d at 11. Therefore, we overrule appellant=s fourth issue. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed August 2, 2007. Panel consists of Justices Anderson, Fowler, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant also states that the investigating officer was unable to ascertain where appellant resided at the time in question. Appellant cites us to page volume 4, page 128 of the reporter=s record. This portion of the record does not state that the investigating officer was unable to ascertain where appellant lived, but only that he never went to the scene of the offense, which the officer explained, is not unusual in a case with a delayed outcry.