John Willis McCoy v. State

• Court: Court of Appeals of Texas
• Decided: November 9, 2006
• Docket: 01-06-00080-CR
• Status: Published

Opinion

Opinion issued November 9, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00080-CR

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JOHN WILLIS MCCOY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1011478

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MEMORANDUM OPINION

           Appellant, John Willis McCoy, pleaded not guilty to the offense of sexual assault of a child. The jury found appellant guilty as charged, found an enhancement paragraph alleging a prior felony conviction true, and assessed punishment at 25 years’ confinement. In his sole point of error, appellant contends the evidence is factually insufficient to support his conviction. We affirm.

BACKGROUND

           During the Christmas holidays of 2004, D.R., the 15-year-old complainant, was staying with her aunt, Erica Smith. Also staying in the apartment were D.R.’s younger sister, Courtney, several cousins, and appellant, who lived with Erica and was the father of two of her young children. D.R. referred to appellant as “Uncle John.”

           Around 11 p.m. on December 28th, D.R. entered the apartment after spending time outside with her boyfriend, Kenneth, who lived nearby in the same apartment complex. D.R. lay on the sofa while talking to Kenneth on the telephone. Her sister, Courtney, and cousin, Roshanda, were on the floor nearby playing video games. D.R. was wearing a “club dress,” which she wore for sleeping because she knew she could not wear it outside, and was covered with a blanket.

           Appellant came in the room and sat down on the sofa next to D.R., who continued to talk on the telephone. He watched the other girls play video games and waited to use the telephone. D.R. gave appellant the telephone and he went outside to make a call. He soon returned and once again sat on the sofa near D.R.’s feet. D.R. moved her feet to make room for him, and then drifted off to sleep. Soon D.R. woke up after she felt appellant’s hand on her leg in the area of her vagina. She scooted further up on the sofa because she thought that appellant had brushed her leg while adjusting the blanket. D.R. drifted off to sleep again and awoke when appellant inserted his fingers into her vagina and twisted them around. D.R. began quietly sobbing, but her sister and cousin, who were still playing the video game, could not hear her. Appellant continued to touch D.R.’s vagina for about five to 10 minutes before he got up and went outside.

           After appellant went outside, D.R. attempted to call her boyfriend, but he did not answer the telephone. Courtney noticed that D.R. was upset and asked her, “[W]hat’s wrong with you?” D.R. replied that nothing was wrong, and she went down the hallway to the bedroom in which her four young cousins were sleeping. D.R. lay down on the bed with her cousins and curled into a ball. Appellant came in the room, lay down next to D.R, and began rocking her while saying, “I’m sorry.” At one point, one of D.R.’s younger cousins woke up, but appellant told her to go back to sleep.

           D.R. got up and went down the hall toward her aunt’s bedroom. Appellant followed her, grabbed her, and both of them fell against a door. Courtney and Roshanda heard the struggle and came to see what was happening. They saw appellant with his arms around D.R., who was crying and struggling to get away. Roshanda and Courtney testified that they heard appellant telling D.R. that he was sorry. D.R. broke free from appellant and fled the apartment.

           D.R. went to Kenneth’s apartment, where she told Kenneth, his mother, and Courtney, who had since arrived at Kenneth’s apartment, what appellant had done to her. D.R. was extremely upset and went to get a knife because she was scared. D.R. called the police from Kenneth’s apartment. Appellant followed D.R. to Kenneth’s apartment, but she would not let him inside.

           Courtney eventually convinced D.R. to return to her aunt’s apartment, where she told her aunt what appellant had done to her. The police arrived later and arrested appellant.

           The next day, D.R. went to the Children’s Assessment Center, where she was examined by Dr. Erin Endom. Dr. Endom discovered, and photographed, a linear abrasion right behind the opening of D.R.’s vagina. Dr. Endom testified that this abrasion was consistent with a fingernail scratch.

FACTUAL SUFFICIENCY

           In his sole point of error, appellant argues that the evidence is factually insufficient to prove that he committed a sexual assault of D.R. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W. 2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, No. PD–469–05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). Under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958, S.W.2d at 408–09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.

           Essentially, appellant contends that the evidence is factually insufficient because the testimony of the child complainant was not credible. Specifically, appellant points out that (1) D.R. was not a virgin and had last had sexual relations one month before the alleged assault, (2) despite the linear abrasion, there was no swelling or bruising of D.R.’s vaginal area, (3) D.R. was with her boyfriend the entire day, (4) D.R. was wearing a “club dress,” with no underwear, which she must have been wearing all day while out with Kenneth, (5) Courtney and Roshanda, who were sitting nearby did not notice anything happening between D.R. and appellant, (6) D.R. did not do anything after she first felt a hand near her vagina, (7) D.R. made no effort to get off the sofa after she felt appellant touching her, (8) D.R. did not seek help from her cousins or aunt, but, instead ran to her boyfriend’s nearby apartment, (9) D.R. and the other children were unsupervised the entire day, (10) no police officer testified about collecting evidence or taking witness statements, (11) there was no expert evidence to suggest that D.R. was a victim of sexual abuse, and (12) there was no DNA evidence collected from appellant’s hands.

           Under both a legal and factual sufficiency review, “the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony.” Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury could have believed all, some, or none of the girl’s or any other witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Credibility is for the jury to assess and to weigh. See Johnson, 23 S.W.3d at 8. The testimony of a complainant standing alone, even when the complainant is a child, is sufficient to support a sexual-assault finding. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2003); see also Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating that testimony of child complainant alone sufficient to support conviction of sexual assault); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d) (same). Physical evidence is not necessary to corroborate a sexual assault victim’s testimony. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (concluding evidence of complainant’s testimony alone was legally sufficient despite lack of physical evidence).

           The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the sexual organ of D.R., a child under the age of 17 and not appellant’s spouse, by appellant’s fingers. See Tex. Pen. Code Ann. § 22.011(a)(2)(A), (c)(1) (Vernon 2005).

           In this case, D.R. testified that appellant put his fingers in her vagina and twisted them around. Even though D.R. did not react by screaming or telling appellant to stop, there was evidence that she was extremely upset. Her sister saw her “sniffling” and asked her what was wrong. Both Roshanda and Courtney later saw appellant holding D.R. in the hall. D.R. was crying and appellant was saying that he was sorry.

           Even though D.R. had spent the day with her boyfriend, there is nothing to suggest, as appellant so attempts, that the linear scratch near D.R.’s vagina was caused by contact with her boyfriend. The medical records showed that D.R.’s last sexual contact had occurred over one month before. Similarly, there is nothing to suggest that D.R. was wearing the “club dress” with no underwear while she was out with Kenneth. To the contrary, D.R. testified that she wore the dress only to sleep in.

           Dr. Endom testified that the linear abrasion near appellant’s vagina was “suggestive” of a fingernail scratch. Dr. Endom also testified that these physical findings were consistent with what D.R. told her had happened.

           The jury made the determination that D.R.’s and the other witnesses’ testimony was credible. We have reviewed the entire record in the appropriate light, and we cannot say that the evidence of guilt is either so weak that the verdict is clearly wrong and manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11.

CONCLUSION

           We overrule appellant’s sole point of error.

           We affirm the judgment.

                                                                  Sherry Radack

                                                                  Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).