Kerry Dane Senior v. State

• Court: Court of Appeals of Texas
• Decided: January 20, 2009
• Docket: 14-07-00930-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 20, 2009

Affirmed and Memorandum Opinion filed January 20, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00930-CR

KERRY DANE SENIOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1067194

M E M O R A N D U M   O P I N I O N

Appellant Kerry Dane Senior appeals his conviction for sexual assault, claiming the evidence is factually insufficient to support his conviction.  We affirm.

I.        Factual and Procedural Background

The complainant met appellant at a party.  Some of the guests at the party, including appellant and the complainant, spent the night at the party hostess=s home.  The complainant went to sleep beside her friend Melissa on the living room floor. 

The complainant awoke when she felt someone=s hand inside her underwear.  She saw appellant laying beside her, facing her, and he was touching her vagina.  She denied giving him consent to touch her like that.  She claimed that when appellant realized she was awake, he removed his hand and pretended to be asleep.  She explained that she hit him but that appellant continued to act as if he were sleeping.  The complainant told her friend, the hostess of the party, what happened.  The hostess confronted appellant and asked him to leave her home.  Appellant could not find a ride home from the party, and the hostess and the complainant later gave him a ride.

The complainant filed a police report within two weeks and provided a written statement for the authorities.  Appellant was charged with sexual assault by intentionally and knowingly causing the penetration of the complainant=s female sexual organ with his finger, without the complainant=s consent.  Appellant pleaded Anot guilty.@  At the trial that followed, both appellant and the complainant described the events on the night in question.  The jury found appellant guilty as charged.  The trial court assessed punishment at two years= confinement.  In a single issue, appellant challenges his conviction, claiming factual insufficiency of the evidence.

II.       Factual Sufficiency

Appellant claims that the evidence is factually insufficient because appellant=s testimony conflicted with the complainant=s account of events and because no physical evidence or witnesses could corroborate the complainant=s account.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict.^[1]  Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).  It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict.  Id. at 417.  If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction.  Id. at 414B17.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  Unless the court is issuing a memorandum opinion, in conducting a factual‑sufficiency review, we address the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of sexual assault if that person knowingly or intentionally causes the penetration of the anus or sexual organ of another person by any means without consent.  Tex. Penal Code Ann. ' 22.011(a)(1)(A) (Vernon Supp. 2008).

Appellant complains that there is no physical evidence or witnesses to prove he committed the charged offense.  Generally, a complainant=s testimony alone is sufficient to support a conviction for sexual assault.  See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  In this case, the complainant described how she woke up to see appellant and feel his fingers moving inside her vagina.  She denied giving him consent to touch her in this way.  She not only told authorities about the incident, but she immediately told her friends.  Her written statement that she gave to authorities closely tracked her trial testimony in describing the incident.  Moreover, physical evidence is not required when, as in this case, the complainant provided ample testimony to establish that a sexual assault occurred.  See Tinker, 148 S.W.3d at 669.  Similarly, a police investigator testified that this is not the sort of case in which DNA or medical records would confirm whether a sexual assault took place, as there are not typically visible injuries.  The investigator testified that sexual assault victims often do not report an incident immediately.

To the extent that appellant complains the complainant=s testimony conflicts with his account, in which he denied involvement, the jury, as trier of fact, is the sole judge of the credibility of the witnesses, and the weight to be given the evidence.  See Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997).  The jury could have accepted or rejected any or all of the evidence on either side and reconciled conflicts in the testimony.  See Fuentes, 991 S.W.2d at 271; Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  Appellant points the following evidence as undermining the jury=s verdict:  (1) testimony that his face had no marks or redness to indicate that the complainant hit him, (2) Melissa, who was sleeping on the floor next to the complainant, was not aware of what had happened until later, (3) the complainant waited two weeks before reporting the incident, (4) the complainant and the hostess offered appellant a ride home after the incident, and (5) his testimony that the complainant and her friends laughed at him during a break in the trial.  A fact-finder=s decision is not manifestly unjust simply because it resolved conflicting views of evidence in favor of the State.  See Cain, 958 S.W.2d at 410; Herrero v. State, 124 S.W.3d 827, 835 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  When the evidence is viewed in a neutral light, we cannot say with some objective basis in the record that appellant=s convictions are clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Bargas v. State, 252 S.W.3d 876,889 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  Therefore, the evidence is factually sufficient to support appellant=s conviction.  See Rachell v. State, No. 14-05-00122-CR, 2006 WL 1081286, at *4 (Tex. App.CHouston [14th Dist.] Apr. 13, 2006, pet. ref=d) (mem. op., not designated for publication).  Accordingly, we overrule appellant=s sole issue on appeal.

The trial court=s judgment is affirmed.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Because a factual-sufficiency review begins with the presumption that the evidence supporting the jury=s verdict is legally sufficient, and because appellant challenges only the factual-sufficiency of the evidence, appellant effectively concedes that the evidence is legally sufficient to sustain the conviction.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).