Jesse Scott v. State

• Court: Court of Appeals of Texas
• Decided: January 19, 2000
• Docket: 04-99-00132-CR
• Status: Published

Opinion

99-00132 Scott v State of Texas.wpd No. 04-99-00132-CR Jesse SCOTT, Appellant v. The STATE of Texas, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-2087 Honorable Sharon MacRae, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 19, 2000

AFFIRMED

Jesse Scott appeals his conviction for sexual assault, arguing the evidence is factually insufficient to support the jury's verdict. We disagree and affirm the judgment.

Factual and Procedural Background

Scott was indicted for sexually assaulting "Anne," a fifteen year old girl. At trial, Anne testified Scott had nonconsensual sexual intercourse with her one night when she was staying at her friend Maria's house. She further stated, and Maria confirmed, Anne told Maria about the incident the next morning. Anne subsequently went to the hospital, where she was examined by a doctor. The doctor corroborated Anne's story, testifying Anne claimed to have been raped by Scott at her friend's house. Although the physical examination of Anne did not reveal any signs of trauma to her genital area, the doctor testified these results were not unusual for a post pubertal girl who has engaged in sexual intercourse.

After receiving the jury charge, which defined sexual assault as intentionally or knowingly causing the penetration of the female sexual organ of a child by any means, the jury found Scott guilty of sexually assaulting Anne and sentenced him to ten years in prison. Scott appeals, arguing the evidence is factually insufficient to support the verdict.

Standard of Review

In reviewing a factual sufficiency point, we review all of the evidence "'without the prism of "in the light most favorable to the prosecution" [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely filed)).

Discussion

Scott argues the evidence is factually insufficient to support a finding that he sexually assaulted Anne because there is no medical evidence of forced intercourse and Anne's testimony is incredible. However, forced intercourse, or nonconsent, is not an element of the charged offense. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 1999); Hernandez v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993). Furthermore, while Anne's version of events may have conflicted to some degree with Maria's, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Clewis, 922 S.W.2d at 133; Graves v. State, 994 S.W.2d 238, 242-43 (Tex. App.--Corpus Christi 1999, pet. ref'd, untimely filed). We therefore hold the evidence is factually sufficient to support the verdict, Graves, 994 S.W.2d at 243, and affirm the trial court's judgment.

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