Ervin, Stacy Eugene v. State

• Court: Court of Appeals of Texas
• Decided: July 3, 2013
• Docket: 05-12-00647-CR
• Status: Published

Opinion

Affirm and Opinion Filed July 3, 2013

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00647-CR

STACY EUGENE ERVIN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-80634-2012

MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Lewis Opinion by Justice Francis Stacy Eugene Ervin appeals his convictions for sexual assault of a child, two counts of

indecency with a child by contact, and indecency with a child by exposure. After the jury found

appellant guilty, the trial court assessed punishment, enhanced by a prior felony conviction of

sexual assault of a child, at twenty years in prison for the indecency by exposure and life for the

remaining three offenses. In two issues, appellant claims insufficient evidence supports his

convictions and the trial court erred by allowing certain evidence. We affirm.

In his second issue, appellant contends the evidence is legally insufficient to support his

convictions. When assessing whether the evidence is legally sufficient to support a conviction,

we review all of the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses’

credibility and the weight to be given their testimony, is free to accept or reject any and all

evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.

2000). The duty of the reviewing court is to ensure the evidence presented supports the jury’s

verdict and that the State has presented a legally sufficient case of the offenses charged.

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

A person commits sexual assault if he intentionally or knowingly causes the penetration

of the sexual organ of a child younger than 17 years of age by any means. See TEX. PENAL CODE

ANN. §§ 22.011(a)(2)(A), (c)(1) (West 2011). The State’s indictment in count III alleged

appellant intentionally and knowingly caused the penetration of the N.O.’s female sexual organ

by appellant’s finger. The testimony of a child victim alone is sufficient to support a conviction

for sexual assault. TEX. CODE CRIM. PRO. ANN. art. 38.07(a) (West Supp. 2012); Mathis v. State,

397 S.W.3d 332, 337 (Tex. App.—Dallas 2013, no pet.).

A person commits indecency with a child younger than 17 years of age if he (1) engages

in sexual contact with the child or (2) with intent to arouse or gratify the sexual desire of any

person, exposes any part of his genitals, knowing the child is present. See TEX. PENAL CODE

ANN. § 21.11(a)(1), (2)(A). Sexual contact means the following acts, if committed with the

intent to arouse or gratify the sexual desire of any person: (1) any touching by a person,

including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the

anus, breast, or any part of the genitals of a person. See id. § 21.11(c)(1), (2). The State’s

indictment alleged appellant, with the intent to arouse and gratify the sexual desire of any person,

intentionally and knowingly (1) engaged in sexual contact by touching N.O.’s leg with his

2 genitals (count V) and touching N.O.’s breast with his hand (count VI) and (2) exposed his

genitals to N.O. (count VIII).

In his brief, appellant does not analyze the facts of the case under the legal sufficiency

standard nor does he explain why the evidence is insufficient to support his convictions.

However, the record shows the forty-two-year-old appellant lived with N.O.’s twenty-seven-

year-old sister, Christina. Appellant and Christina each had a son from prior relationships, and

Christina was pregnant at the time with appellant’s child. N.O. often went to their home to help

her sister with the children. When N.O. was about sixteen years old, appellant began making

comments about her appearance, telling her she was beautiful and sexy. N.O. thought the

comments were inappropriate and tried to ignore them. One day, he slapped her butt and told her

she looked good in the shorts she was wearing. Although she again tried to ignore him, the

comments continued. In addition, appellant began exposing his penis to her and occasionally

masturbated in front of her.

On June 18, 2010, N.O. visited Christina and appellant. Although she usually did not

spend the night at their house, that night she did. N.O. was lying on the couch in the living

room, covered by a comforter, when she heard appellant come downstairs; she pretended to be

asleep. Appellant pulled the comforter back and began rubbing her body. He touched her leg

and breast and rubbed her thigh. N.O. tossed and turned as though she was asleep, and appellant

left. He returned soon and began touching her again. When N.O.’s brother came downstairs,

appellant covered N.O. with the comforter and left. N.O.’s brother went back to his room

upstairs, and appellant returned a third time. Appellant removed the covers, put his hand down

N.O.’s shorts, and placed his fingers inside N.O.’s vagina. He placed his penis on her inner thigh

and groin area, then touched the lips of her vagina with his penis. He then went back upstairs.

3 N.O. texted her friend, Kyle Furr, and told him to drive to her house and get her, but appellant

returned before she could leave. This time, he pulled down his pants and told N.O. to open her

mouth, but she refused. When he rubbed her chest, she felt “wet sticky stuff” on her. She

grabbed the comforter to cover herself but appellant tried to pull it off. At this point, N.O. got up

and ran out the door. Kyle picked her up and took her to his house where she told him what

happened.

In addition to N.O.’s testimony, George Alaniz of the DNA serology section of the

Texas Department of Public Safety Crime Laboratory, testified he collected a DNA sample from

sperm on the comforter N.O. used the night of June 18, 2010 and compared it to the known

sample of DNA taken from appellant. The probability of selecting an unrelated person at

random who could be the source of the DNA profile was 1 in 28.4 quintillion. Alaniz said

appellant was the source of the profile to “a reasonable degree of scientific certainty.”

Considering all of the evidence in this case, we conclude it is sufficient for a rational jury

to reasonably find that appellant committed sexual assault by penetrating N.O.’s female sexual

organ with his finger, he committed indecency by contact when he touched N.O.’s breasts with

his hands and N.O.’s leg with his penis, and he committed indecency by exposure when he

exposed his penis to N.O. We overrule appellant’s second issue.

In his first issue, appellant claims the trial court erred by admitting hearsay through (1)

Furr’s testimony about what N.O. told him the night of the assault, (2) Furr’s written statement

about what N.O. told him the night of the assault, and (3) N.O.’s statements about the assault to

Nancy McNeil, a pediatric nurse practitioner who performed the sexual assault exam of N.O.

We first note that, with respect to his complaints on appeal about McNeil’s testimony and

Furr’s written statement, appellant fails to provide any law or substantive analysis explaining

4 why the admission of this evidence was error. Because he fails to adequately brief these

complaints, we conclude they are waived. See TEX. R. APP. P. 38.1(h).

We now turn to his complaint that Furr’s testimony at trial was hearsay and should not

have been admitted. We review the trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).

A trial court abuses its discretion when it acts outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g).

Hearsay is a statement, other than one made by the declarant while testifying at a trial or

hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). For

hearsay to be admissible it must fit into an exception provided by a statute or the rules of

evidence; one such exception is the excited utterance exception. See TEX. R. EVID. 803(2);

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An excited utterance is a

“statement relating to a startling event or condition made while the declarant was under the stress

of excitement caused by the event or condition.” TEX. R. EVID. 803(2); see Salazar v. State, 38

S.W.3d 141, 154 (Tex. Crim. App. 2001). The basis for the excited utterance exception is a

psychological one, namely that when a person is in the instant grip of violent emotion,

excitement or pain, she “ordinarily loses the capacity for reflection necessary to the fabrication

of a falsehood and the ‘truth will come out.’” Zuliani, 97 S.W.3d at 595.

In determining whether a hearsay statement is admissible as an excited utterance, the

critical determination is “whether the declarant was still dominated by the emotions, excitement,

fear, or pain of the event” or condition at the time of the statement. McFarland v. State, 845

S.W.2d 824, 846 (Tex. Crim. App. 1992). The trial court may consider the time elapsed and

whether the statement was in response to a question. Zuliani, 97 S.W.3d at 595. However, it is

5 not dispositive that the statement is an answer to a question or was separated by a period of time

from the startling event; these are simply factors to consider in determining whether the

statement is admissible under the excited utterance hearsay exception. See Lawton v. State, 913

S.W.2d 542, 553 (Tex. Crim. App. 1995), overruled on other grounds, Mosley v. State, 983

S.W.2d 249 (Tex. Crim. App. 1998). As the reviewing court, we must determine whether the

statement was made “under such circumstances as would reasonably show that it resulted from

impulse rather than reason and reflection.” Zuliani, 97 S.W.3d at 596 (citing Fowler v. State,

379 S.W.2d 345, 347 (Tex. Crim. App. 1964)).

The evidence showed that after Furr got N.O.’s text, he drove to the house and picked her

up. When she got in the car, Furr knew “instantly there was something wrong.” She was crying,

shaking, and staring blankly at the dashboard of the car. Furr drove her to his parents’ house

nearby. N.O. sat in the house, shaking and crying, but would not talk. Furr had never seen her

like this before and repeatedly told her he wanted to help her. After fifteen to twenty minutes,

N.O. started speaking. When the prosecutor asked Furr what she told him, appellant objected on

the grounds of hearsay. The prosecutor stated she was offering the statement under the excited

utterance exception, and the trial court overruled the objection. Furr then said N.O. told him

appellant came down the stairs, told her to open her mouth, and was going to stick his penis in

her mouth. He also put his finger in her vagina and, although she tried to fight him off, she could

not.

Although appellant assigns the trial court’s ruling as error, we cannot agree. The

evidence shows that although approximately a quarter of an hour had passed, N.O. was shaking

and crying, still dominated by the emotions, fear, and pain of the event. Because the record

6 supports the trial court’s ruling, we cannot conclude the trial court erred by admitting the

statement. We overrule appellant’s first issue.

We affirm the trial court’s judgment.

/Molly Francis/ MOLLY FRANCIS Do Not Publish JUSTICE TEX. R. APP. P. 47 120647F.U05

7 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

STACY EUGENE ERVIN, Appellant On Appeal from the 401st Judicial District Court, Collin County, Texas No. 05-12-00647-CR V. Trial Court Cause No. 401-80634-2012. Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices FitzGerald and Lewis participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 3, 2013

/Molly Francis/ MOLLY FRANCIS JUSTICE