Kevin Jones v. State

• Court: Court of Appeals of Texas
• Decided: November 13, 2008
• Docket: 14-07-01052-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 13, 2008

Affirmed and Memorandum Opinion filed November 13, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-01052-CR

KEVIN JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1091926

M E M O R A N D U M   O P I N I O N

A jury found appellant, Kevin Jones, guilty of aggravated sexual assault.  After finding two enhancement paragraphs true, the jury assessed punishment at eighteen years= confinement, and the trial court sentenced appellant accordingly.  In a single issue, appellant argues the evidence was legally and factually insufficient because of a variance between the indictment and the proof at trial.  Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Factual and Procedural Background

Appellant and Velma R., the mother of the six-year-old complainant, S.G., were married in 2003.  Yancy G., S.G.=s biological father, nevertheless played an active  role in allocating his time and financial support to Velma, S.G., and S.G.=s brother.  Yancy normally got S.G. and her brother after school and watched them while Velma worked.

In late September 2006, S.G. told an assistant at her after-school daycare center that she was hurting in her private area, and the center sent a note home with Yancy.^[1]  Velma questioned S.G. and examined her, but did not see anything unusual.

The next day S.G. soiled her clothing at the daycare.  When the daycare director, Judy Turner, questioned S.G. about whether she had asked her teacher to use the bathroom, S.G. indicated she was still hurting in her private area.  When Turner asked S.G. what caused her to hurt, S.G.=s  eyes filled with tears and she dropped her head.  Questioned further, S.G. said Kevin, Aher mother=s boyfriend,@ hurt her.  S.G. told Turner appellant Atook off her panties,@ Atook off his panties,@ and put Ahis hand on her private area and he put his finger in her private area.@  Turner reported the matter to CPS.

Tammy Urban of the Children=s Assessment Center interviewed S.G. two days after S.G.=s conversation with Turner.  In the videotaped interview, S.G. stated appellant licked his finger, stuck it inside her, and moved it around.  When Urban asked S.G. whether there had been incidents other than the most recent, S.G. looked away and replied she did not know.

Appellant was subsequently charged with aggravated sexual assault.  The indictment read in part:

[I]n Harris County, Texas, KEVIN JONES . . . on or about SEPTEMBER 24, 2006, did then and there unlawfully, intentionally and knowingly cause the penetration of the FEMALE SEXUAL ORGAN of [S.G.] . . . a person younger than fourteen years of age and not the spouse of [Jones], by placing HIS FINGER in the FEMALE SEXUAL ORGAN of [S.G.].

In July 2007, Assistant District Attorney Connie Spence and her intern Sarah Hollowell interviewed S.G. in preparation for trial, which was then set the same month.  During that interview, S.G. stated appellant put his finger inside her and it hurt.  When asked whether any other part of appellant=s body had touched her, S.G. indicated appellant=s penis had touched her Atop part@ and her anus.

The case was tried to a jury.  Turner, Urban, S.G., Velma R., and Marcella Donnarunadon (the examining pediatrician) testified for the State.  The jury also viewed the videotape of Urban=s interview with S.G.

Using dolls and responding to leading questions, S.G. testified appellant touched her with his fingers on Athe part she goes pee with@ and Athe part she goes poop with.@  Appellant told her to remove her shorts and panties, and touched her on her skin, not over her clothes.  The State also elicited the following testimony without objection:

Q.  Okay.  And did he touch you with his finger on the inside or the outside that you pee with?

A.  Outside.

Q.  And when his finger was on the inside of the part that you go pee with did his finger move or stay still?

A.  Move.

Q.  All right.  Can you C do you know which fingers that it was that he put inside of the part that you go pee with?

A.  This finger.

Q.  Okay.  Point to it again.

A.  Indicating.

Q.  Okay.  Now can you use your hand and stick up the finger that you=re pointing to on the doll that he touched your part that you go pee with.  Hold that up on your hand.  Which finger?

A.  Okay.

Q.  This one?

Q.  Now you said it was moving, that you could feel it moving on the part that you pee with.  Is that right?

A.  Yes.

Q.  Can you show us with your finger what you could feel on how it was moving?

A.  It was just going in and out.

The defense called Hallowell and appellant.  Appellant denied touching S.G.  The defense theory was that too many other people had been in the apartment Velma, appellant, and S.G. shared for appellant to have assaulted S.G. and that S.G. had learned about the acts she described either because someone else had assaulted her or she had seen them on television or in magazines.

At the close of evidence, the trial court charged the jury in relevant part:

A person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the penetration of the female sexual organ of a child by any means; and if the victim is younger than fourteen years of age.

. . . .

Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of September, 2006, in Harris County, Texas, the defendant, Kevin Jones, did then and there unlawfully, intentionally or knowingly cause the penetration of the female sexual organ of [S.G.], a person younger than fourteen years of age and not the spouse of the defendant, by placing his finger in the female sexual organ of [S.G.], then you will find the defendant guilty of aggravated sexual assault, as charged in the indictment.

The jury found appellant guilty.

Discussion

In a single issue, appellant argues the evidence was legally and factually insufficient to support his conviction because of a variance between the indictment and the proof at trial.  Appellant asserts that the indictment charged him with having penetrated S.G.=s sexual organ with his finger, but the State proved only that he touched S.G. on the outside of her sexual organ.

In support of his argument, appellant initially cites Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).  He then cites case law setting forth the standard tests for legal and factual sufficiency.  See, e.g., Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (factual sufficiency).  Finally, he requests this court to reverse the judgment and order a new trial, the remedy for factual, not legal, insufficiency.  As does the State, we view appellant as arguing simply that the evidence was not legally or factually sufficient to support his conviction for having digitally penetrated S.G.=s sexual organ.^[2]

In considering a legal sufficiency challenge, we review all evidence in the light most favorable to the finding and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  In examining a factual sufficiency challenge, we view all evidence in a neutral light and set aside the verdict A>only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.=@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d at 129).  Before we may reverse for factual insufficiency, we must first conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  As the court of criminal appeals recently explained:

Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence.  AThe difference between the two standards is that the former requires the reviewing court to defer to the jury=s credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury=s on these questions >albeit to a very limited degree.=@ In reality, a Afactual‑sufficiency review is >barely distinguishable= from a Jackson v. Virginia legal sufficiency review.@

Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (citations omitted).

A person commits an aggravated sexual assault if he Aintentionally or knowingly . . . causes the penetration of the anus or sexual organ of a child by any means . . . if . . . the victim is younger than 14 years of age.@  Tex. Penal Code Ann. ' 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2008).  Appellant contends only that the evidence was factually and legally insufficient to establish he caused S.G.=s sexual organ to be penetrated by his finger as alleged in the indictment and required by the jury charge.  He does not argue the evidence was insufficient to establish any other element of the offense.

The following evidence would allow a rational trier of fact to find digital penetration beyond a reasonable doubt:  S.G.=s unobjected-to testimony that appellant=s finger Awas just going in and out@; S.G.=s videotaped interview with Urban in which she described appellant=s licking his finger, placing it inside her, and moving it around; the detail in S.G.=s descriptions during the videotaped interview; S.G.=s outcry to Turner, in which S.G. said appellant put his finger in her and S.G. pointed Adown there@; and S.G.=s statement to Spence and Hollowell that appellant put his finger inside her and it hurt.  The evidence is legally sufficient to support appellant=s conviction.  See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005) (stating conviction under Penal Code section 22.021 supportable on uncorroborated testimony of sexual offense victim if victim was seventeen years of age or younger at time of offense); Rodriguez v. State, 819 S.W.2d 871, 874 (Tex. Crim. App. 1991) (holding rational trier of fact could have found all elements of offense beyond a reasonable doubt based on outcry testimony and victim=s testimony); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.CDallas 2000, pet. ref=d) (stating child victim=s outcry statement alone can suffice to support conviction for aggravated sexual assault).

The only evidence contradicting a finding of digital penetration consisted of (1) the defendant=s denial of even touching S.G., and (2) S.G.=s response of Aoutside@ to the State=s question whether appellant touched her Awith his finger on the inside or the outside that you pee with.@^[3]  After initially saying appellant touched her outside, however, S.G. responded affirmatively to questions that assumed penetration, and it was for the jury, as factfinder, to judge the weight and credibility to be given to witness testimony.  Tran v. State, 221 S.W.3d 79, 87 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

Having viewed all the evidence in a neutral light, we cannot conclude the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Watson, 204 S.W.3d at 417.

We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Charles Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 13, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

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

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^[1]  APrivate area@ was the term the day care center director used.  In talking with the director, S.G. said Adown here@ and was pointing.  At trial, S.G. referred to her vaginal area as Awhere you pee,@ and to her anal area as Awhere you poop.@

^[2]  Appellant does not argue we should apply the evidentiary sufficiency standard found in Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).  See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (recognizing the Gollihar/Malik standard is not the same as the Jackson v. Virginia standard).  In Gollihar, the court explained, AIn a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.@  Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).  If the State had proved only finger to vagina contact, and not penetration, it would not have proved appellant guilty of any crime under Texas Penal Code section 22.021.  See Tex. Penal Code Ann. ' 22.021(a)(1)(B) (Vernon Supp. 2008) (proscribing penetration of child=s sexual organ by any means, but proscribing contact with child=s sexual organ only by another person=s mouth, anus, or sexual organ).

^[3]  There was no medical evidence of penetration, but the physician who examined S.G. testified that, in only five percent of the cases, a person can look at the physical evidence and conclude abuse occurred.