Larry Douglas Jones v. State

• Court: Court of Appeals of Texas
• Decided: March 2, 2000
• Docket: 03-98-00639-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00639-CR

Larry Douglas Jones, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 98-149-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

A jury found appellant Larry Douglas Jones guilty of aggravated sexual assault (count one) and indecency with a child by contact (count two). Tex. Pen. Code §§ 22.011 & 21.11 (West Supp. 2000). The jury assessed punishment for aggravated sexual assault, enhanced by a prior felony conviction, at life imprisonment and assessed twenty years in prison for indecency with a child. See Tex. Penal Code § 12.42(c)(2) & (g) (West Supp. 2000) (punishment for aggravated sexual assault is life in prison when defendant has a prior felony conviction). In his only point of error, Jones alleges that the evidence is legally insufficient to support a conviction for aggravated sexual assault insofar as the evidence fails to prove that appellant "penetrated" the victim's female sexual organ. We will overrule this contention and affirm the trial court's judgment.

FACTUAL BACKGROUND

On January 9, 1998, the complainant, K.J. (age 13 at the time of the offense), spent the night at the home of her friend Amy, Jones' stepdaughter. K.J. testified that after Amy and her mother went to bed, she and Jones stayed up late watching movies. She recalled that Jones offered her some beer in a plastic cup, which she drank and then blacked out. Although she did not remember what Jones did to her after she blacked out, she remembers wearing panties and a sanitary pad that night. According to oral and written statements provided after his arrest, Jones admitted putting Valium in K.J.'s beer. Jones further stated that after K.J. became unconscious, he moved her panties aside and penetrated her vagina with a lubricated finger. Jones admitted to "fingering" her and specified in oral and written statements to police that he penetrated her with his finger "up to the first joint," or approximately half an inch.

When complainant's mother, arrived to pick up her daughter the following morning, she found K.J. asleep in Amy's room. Jones was the only other person in the home at the time. The complainant's mother testified that after her daughter awoke, she was so incoherent and groggy that she needed help getting to the car and that she vomited in the driveway. K.J.'s condition did not improve, and the next morning her mother took her to Johns Community Hospital where Dr. Jamie Gutierrez discovered traces of diazepam (Valium) in her blood. Subsequent tests administered by a chemist with the Department of Public Safety confirmed the presence of diazepam in K.J.'s blood.

On January 14, 1998, Officer Carl Rackley, a Cedar Park Police Investigator, arrested Jones and obtained the oral and written confessions admitted as evidence in trial. In his written statement, Jones explained, "During the time I was touching her genitals, I did not penetrate more than half an inch." Jones revealed to Officer Rackley that he stopped the penetration because K.J. had a "soiled sanitary pad." He then masturbated.

Forensic serologist, Wilson Young, identified semen stains on K.J.'s panties and further testified that the DNA in the semen matched the DNA extracted from a blood sample obtained from Jones.

As to the offense of aggravated sexual assault, the court's charge required the jury to find beyond a reasonable doubt that Jones "intentionally or knowingly caused the penetration of the female sexual organ of K.J., a child younger than 14 years of age, by the defendant's finger." The jury found Jones guilty on both counts.

DISCUSSION

Jones contends in his only point of error that the evidence was legally insufficient to support a conviction of aggravated sexual assault which requires that a jury find beyond a reasonable doubt that the defendant "intentionally or knowingly caused (by any means) the penetration of the female sexual organ of a child younger than 14 years of age."

To determine the legal sufficiency of the evidence to support a criminal conviction, we review all the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). Any inconsistencies in the evidence should be resolved in favor of the verdict. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and circumstantial evidence. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

Jones argues that the evidence admitted at trial cannot support a reasonable inference that appellant actually penetrated the victim. Specifically, Jones contends that the language of his written statement that he stopped "trying to enter her with my finger" after he noticed the sanitary napkin can only support a reasonable inference that he tried to enter complainant, not that he actually did so. Similarly, Jones argues that the statement "(d)uring the time I was touching her genitals, I did not penetrate more than half an inch" indicates that Jones merely intended to "touch" K.J., not to "penetrate" her, and that the jury could only reasonably infer as much.

Appellant's semantic distinctions are irrelevant. In the context of an aggravated sexual assault charge, proof of the slightest penetration is sufficient to meet the requirement of "penetration." See Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); see also Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (penetration of female sexual organ does not require proof of penetration of vaginal canal). Jones specifically admitted to penetrating the victim up to the first joint of his finger or half an inch.

Furthermore, there is no requirement that the victim be able to testify to penetration; it may be proved by circumstantial evidence or other evidence. Villalon v. State, 791 S.W. 2d 130, 134 (Tex. Crim. App. 1990); Nilsson, 477 S.W. 2d at 595 (holding that in prosecution for rape, "penetration may be proved by circumstantial evidence"). The evidence presented at trial, including the presence of lubrication in Jones' home, traces of Jones' semen on the victim's panties, the presence of diazepam in the victim's blood, and other facts corroborate Jones' oral and written confessions. The evidence, under these circumstances, was legally sufficient for a rational jury to conclude that Jones penetrated the female sexual organ of the victim. Therefore, the jury was entitled to find the defendant guilty of aggravated sexual assault based on the facts presented at trial.

CONCLUSION

The judgment of conviction is affirmed.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: March 2, 2000

Do Not Publish

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