NUMBER 13-12-00295-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NOEL BAIRD NORWOOD III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 410th District Court of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Valdez A jury convicted appellant, Noel Baird Norwood III, of aggravated sexual assault
of a child. TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West 2007). By two issues,
appellant challenges the legal sufficiency of the evidence supporting his conviction, and the trial court’s denial of his request for a hearing on his motion for new trial. We
affirm.1
I. BACKGROUND2
During her testimony, the alleged victim, K.W., a seven year old girl, stated that
appellant awoke her in her bedroom by shaking her, brought her to their living room,
and “put his finger in her ‘tee-tee.’” K.W. later identified the “tee-tee” as female genitalia
on a drawing and doll admitted into evidence. This exchange between the attorney for
the State and K.W. followed:
PROSECUTOR: Now then, when—his pinky you said touched you. How did it touch you?
K.W.: It like—like, touched my outside hole.
PROSECUTOR: Your outside hole?
K.W.: Uh-huh.
PROSECUTOR: Is that a yes?
K.W.: Yes, ma'am.
PROSECUTOR: Did—when it touched your outside hole, you mean the hole that's by your tee-tee?
PROSECUTOR: Did his pinky go inside your hole at all?
K.W.: No, ma'am.
PROSECUTOR: Okay. Did it go in past—to get to your hole, did it go in past part of your tee-tee?
1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). 2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
2 K.W.: No.
...
PROSECUTOR: Did any part of his pinky go in just a little bit?
PROSECUTOR: Tell me about that.
K.W.: It just went in a little bit and I felt it and I was very tired.
PROSECUTOR: What do you mean you were tired?
K.W.: I was—I was asleep, but I had—I had school and I was very tired and I hadded [sic] to go to sleep.
PROSECUTOR: All right. Now then, did—when he touched your tee- tee, did it—was it over the clothes of your pajamas or under the clothes?
K.W.: Under.
PROSECUTOR: How did his hand get under your clothes?
K.W.: He pulled it down.
PROSECUTOR: Were you wearing anything under your pajama bottoms besides just the pajama bottoms?
K.W.: Panties.
PROSECUTOR: And did his hand go on top of the panties or under the panties?
K.W.: On top.
PROSECUTOR: Did his finger ever go in under the panties?
PROSECUTOR: And what—his finger, did it move when it was on your panties?
3 K.W.: No, ma'am.
PROSECUTOR: Then what happened?
K.W.: Then I asked him, can I go to bed; and then he said, yes; and then I walked into bed.
PROSECUTOR: How did it feel when this was happening to you?
K.W.: Not very comfortable.
PROSECUTOR: Okay. Why was that?
K.W.: Because—because I never had no one else did that before; and I just—it just felt wrong.
PROSECUTOR: Did it hurt at all?
PROSECUTOR: I have a little doll with me. It's just one of my little girl's dolls. Can you show me what you—and can you stand up so the jury can see what you're doing? Can you show me what you showed me before?
THE COURT: Pardon me. Let the record show this is apparently an unmarked exhibit. It does appear to be a children's doll figure about 12 to 14 inches long at the greatest. It is clothed in shorts and a top, it appears; otherwise, there's no other clothing.
PROSECUTOR: Yes, sir. Thank you, Your Honor.
K.W.: It went in like half.
PROSECUTOR: What do you mean "half?"
K.W.: It didn't, like, really touch my hole. It just went in, like, a little bit.
PROSECUTOR: Okay. And where did it go in just a little bit?
4 K.W.: I don't know.
PROSECUTOR: So, when you say you're not sure if it went inside, were you talking about inside the hole?
K.W. No, ma'am.
PROSECUTOR If any at all, can you show us how much of the pinky went inside you—
K.W. Um—
PROSECUTOR —using your pinky?
K.W. About this much.
THE COURT: You're saying on her own finger or pinky; is that right?
PROSECUTOR: Yes, Your Honor.
THE COURT: Okay.
K.W.: Right here.
THE COURT: Can you raise your hands up a little bit?
THE COURT: Okay. It appears, for the record, that the child is using her right hand with the pinky, or last finger extended upward, and that she used her left hand to try—apparently to—in response with some portion of her small finger of her right hand extended above her left hand. I think that's what I saw. That's what I say for the record. If anyone wants to add correction, you may do so.
Next the State called forensic nurse examiner Tiffany Dusang, who received
K.W.’s outcry. She testified that, in her experience, when children have been touched
on the “female genitalia, they usually use the word ‘on’ and usually that means they've
been touched on the fatty outer lips, just on top.” She stated that “if it's gone past the
5 fatty outer lips, the labia majora, which is actually the beginning of the female genitalia,
they usually always say, ‘in.’” She testified that, when discussing penetration with
victims, she clarifies whether or not the contact was “was inside those fatty outer lips.”
Dusang also testified that she believed penetration had occurred after performing a
vaginal swab, and that K.W. told her that appellant had touched her “in” her vagina.
Dusang, however, admitted that she did not remember much of her conversation with
K.W. because she performs many of these investigations. The State also introduced
Dusang’s medical examiner report on K.W. into evidence, which included notes written
by Dusang indicating that, during her outcry, K.W. reported to Dusang that Norwood
touched her “in” her vagina.
I. LEGAL SUFFICIENCY
Appellant was indicted under section 22.021(a)(1)(B) of the Texas Penal Code
for intentionally or knowingly causing the penetration of the female sexual organ of a
child by any means; and the child was younger than fourteen years of age. TEX. PENAL
CODE ANN. § 22.021(a)(1)(B). Appellant argues that the State presented insufficient
evidence to establish that penetration occurred.
A. Standard of Review
“When reviewing a case for legal sufficiency, we view all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Winfrey v.
State, 323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Accordingly, “we ‘determine whether the necessary inferences
are reasonable based upon the combined and cumulative force of all the evidence when
6 viewed in the light most favorable to the verdict.’” Id. at 879 (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16–
17 (Tex. Crim. App. 2007)). “It has been said quite appropriately, that ‘[t]he appellate
scales are supposed to be weighted in favor of upholding a trial court's judgment of
conviction, and this weighting includes, for example, the highly deferential standard of
review for legal-sufficiency claims.’” Id. (quoting Haynes v. State, 273 S.W.3d 183, 195
(Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S. at 319)). “We
must therefore determine whether the evidence presented to the jury, viewed in the light
most favorable to the verdict, proves beyond a reasonable doubt that appellant”
committed the crime for which the jury found him guilty. Id. “It is the obligation and
responsibility of appellate courts ‘to ensure that the evidence presented actually
supports a conclusion that the defendant committed the crime that was charged.’” Id. at
882 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
Additionally, in our analysis of the verdict, we recognize that the jury is the
exclusive judge of the credibility of the witnesses and the weight to be given their
testimony. Ozuna v. State, 199 S.W.3d 601, 610 (Tex. App.—Corpus Christi 2006, no
pet.). The jury may accept or reject all or part of the evidence. Id. The jury may also
draw reasonable inferences and make reasonable deductions from the evidence. Id.
B. Applicable Law
Under Section 22.01, “penetration” is defined as:
[T]o enter into" or ‘to pass through.’ See, e.g., Webster's Third New International Dictionary, p. 1670 (Merriam-Webster 1981). Thus, in common parlance, mere contact with the outside of an object does not amount to a penetration of it. But pushing aside and reaching beneath a
7 natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact.
Woodall v. State, 376 S.W.3d 134, 138 (Tex. App.—Texarkana 2012, no pet.) (quoting
Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992)). Conduct can accurately
be described as penetration “so long as [the] contact with [the complainant's] anatomy
could reasonably be regarded by ordinary English speakers as more intrusive than
contact with her outer vaginal lips.” Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim.
App. 2012) (quoting Vernon, 841 S.W.2d at 409). Additionally, “tactile contact beneath
the fold of complainant[']s external genitalia amounts to penetration within the meaning
of the aggravated sexual assault statute, since vaginal penetration is not required, but
only penetration of the ‘female sexual organ.’” Steadman v. State, 280 S.W.3d 242,
247–48 (Tex. Crim. App. 2009) (quoting Vernon, 841 S.W.2d at 409–10). The Court of
Criminal Appeals has noted that “the statute does not criminalize penetration of the
vagina, but the broader conduct of ‘penetration of the . . . sexual organ’ of the child.”
Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012) (citing Vernon, 841
S.W.2d at 409. Further, the Court has held that contact outside of the victim’s
underwear can constitute penetration. Vernon, 841 S.W.2d at 409–410; see also
Belasco v. State, No. 01-97-00666-CR, 1999 Tex. App. LEXIS 4320, at **5–6 (Tex.
App.—Houston [1st Dist.], June 10, 1999, pet. ref’d) (mem. op., not designated for
publication).
Moreover, the testimony of a child sexual abuse victim alone is sufficient to
support a conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art.
38.07 (West 2005); see O'Hara v. State, 837 S.W.2d 139, 141–42 (Tex. App.—Austin
1992, pet. ref'd) (finding that victim testimony, by itself, is sufficient evidence of
8 penetration to support a conviction); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim.
App. 1978). Courts give wide latitude to testimony given by child victims of sexual
abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc).
The victim's description of what happened need not be precise, and the victim is not
expected to display the same level of sophistication as an adult. Id. A child victim need
not testify to penetration, which the State may prove through circumstantial evidence.
See id. There is no requirement that the victim's testimony be corroborated by medical
or physical evidence. Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.—Corpus
Christi 1987, no writ). Further, outcry testimony alone can be sufficient to sustain a
conviction for aggravated sexual assault. Rodriguez v. State, 819 S.W.2d 871, 873–74
(Tex. Crim. App. 1991); Kimberlin v. State, 877 S.W.2d 828, 831–32 (Tex. App.—Fort
Worth 1994, pet. ref'd). Notably, even if the victim recants or denies her outcry
statements when testifying at trial, the jury is free to disbelieve the victim’s recantation
and credit her previous statements. Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—
Corpus Christi 2008, pet. ref’d) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991)).
C. Analysis
In the present case, appellant argues that the evidence was insufficient to
support a jury finding that penetration occurred because “when [K.W.] was specifically
questioned regarding if his finger went inside of her, she remained consistent in saying
that he had not.” In a similar case before this Court, an outcry witness testified that a
child victim of sexual assault reported to her that the appellant “stuck his finger inside
her private parts.” Saldana, 287 S.W.3d at 59 n.6. The victim, however, at trial,
9 answered “no” when asked if appellant put his finger inside her vagina and answered
that he only touched outside her vagina. Id. We found that the jury was entitled to
disbelieve the victim’s testimony at trial and that the state had presented legally
sufficient evidence for the jury to find that penetration had occurred. Id. at 60.
Here, throughout her testimony and during her outcry, as noted by Dusang, K.W.
consistently used the word “in” when referring to how appellant touched her genitals.
Furthermore, Dusang testified that when a child says “in,” she is indicating that more
intrusive contact than exterior touching occurred. Additionally, K.W. testified that
appellant’s finger “went in like a little bit” and “went in like half.” And, when asked to
demonstrate how she was touched, she extended her finger in a manner indicating that
contact more intrusive than mere touching of the outer lips occurred.
Furthermore, K.W.’s testimony was not inconsistent; rather her answers indicated
her uncertainty regarding the exact meaning of the term “inside.” As noted above,
children cannot be expected to testify with the same specificity as an adult. See
Villalon, 791 S.W.2d at 134. Regardless, even if we were to determine that K.W.’s
testimony was inconsistent or that she recanted her accusation of penetration, the jury
was entitled to disbelieve any inconsistent testimony or denial proffered by K.W. or to
disregard it as the confusion of a small child. See Saldana, 287 S.W.3d at 60; Villalon,
791 S.W.2d at 134.
The jury was presented with evidence of penetration including K.W.’s repeated
use of the word “in”, her description and demonstration of the contact, the reference to
pain in her outcry, and the testimony and report of witness Dusang. Viewing all this
evidence in the light most favorable to the verdict, we conclude that a rational trier of
10 fact could have found beyond a reasonable doubt that digital penetration occurred. We
overrule appellant’s first point of error.
II. MOTION FOR NEW TRIAL
Following the trial, on February 10, 2012, appellant filed his motion for a new trial
arguing that the verdict was “contrary to the law and evidence.” He attached an affidavit
executed by Child Protective Services caseworker Jordana Hebert in which she alleged
that CPS had previously removed K.W. from her grandmother’s home partially because
she told K.W. to “say bad things” about appellant. On March 23, 2012, the trial court
judge signed the order for a setting and wrote “Hearing on Motion for New Trial Denied.”
The motion for new trial was overruled by operation of law.
A. Standard of Review and Applicable Law
We use an abuse of discretion standard to review a trial court’s decision not to
hold a hearing on a motion for new trial. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.
Crim. App. 1993); Macri v. State, 12 S.W.3d 505, 510 (Tex. App.—San Antonio 1999,
no pet.). The purposes of a new trial hearing are (1) to determine whether the case
should be retried or (2) to complete the record for presenting issues on appeal. Hobbs
v. State, 298 S.W.3d 193, 203 (Tex. Crim. App. 2009). While such a hearing is not an
absolute right, a trial judge abuses his discretion by failing to hold a hearing if the
motion and accompanying affidavits (1) raise matters which are not determinable from
the record and (2) establish reasonable grounds showing that the defendant could
potentially be entitled to relief. Id. This second requirement limits and prevents "fishing
expeditions." Id.; Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). A new-
trial motion must be supported by an affidavit specifically setting out the factual basis for
11 the claim. See TEX. R. APP. P. 21.3(h); Hobbs, 298 S.W.3d at 203. If the affidavit is
conclusory, is unsupported by facts, or fails to provide requisite notice of the basis for
the relief claimed, no hearing is required. Id.
Although a defendant need not plead a prima facie case in his motion for new
trial, he must at least allege sufficient facts that show reasonable grounds to
demonstrate that he could prevail. Id.; Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim
App. 2009). For example, in Smith v. State, the Court of Criminal Appeals reversed the
Tenth Court of Appeals, finding that a trial court did not abuse its discretion by not
holding hearing on a defendant’s motion for new trial based on ineffective assistance of
counsel because he failed to establish reasonable grounds to demonstrate that he could
meet both prongs of the Strickland test. 286 S.W.3d at 338 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984). This case clarifies that if an appellant must
satisfy two elements to prevail in a motion for new trial, a trial court only abuses its
discretion in failing to hold a hearing if the claimant provides facts supporting
reasonable grounds for both elements. Id.
B. Discussion
Appellant contends that he was entitled to a hearing on his motion for new trial.
See TEX. R. APP. P. 21.6. He argues that he provided a motion for new trial and affidavit
asserting reasonable grounds for relief that were not determinable from the record.
Appellant supported his motion by attaching Hebert’s affidavit. This evidence was never
introduced at trial and is not part of the record; therefore, Norton’s motion must be
based on a claim of newly discovered evidence.3 See TEX. CODE CRIM. PROC. ANN. art.
3 Because the evidence is indeterminable from the record, we conclude that appellant has satisfied the first requirement entitling him to a hearing. See Hobbs, 298 S.W.3d at 203.
12 40.001 (West 2012) (“A new trial shall be granted an accused where material evidence
favorable to the accused has been discovered since trial.”). In order to prevail in a
motion for new trial based on newly discovered evidence, the appellant must show,
among other things, that the new evidence was unavailable at trial.4 Lee v. State, 186
S.W.3d 649, 659–60 (Tex. App.—Dallas 2006, pet. ref'd); see also Wallace v. State,
106 S.W.3d 103, 108 (Tex. Crim. App. 2003). However, appellant has not explained on
appeal how he provided reasonable grounds in his motion to demonstrate that the
evidence was unavailable at trial. 5
Nonetheless, appellant cites our previous decision in Garcia to support his claim.
See Garcia v. State, 291 S.W.3d 1, 27 (Tex. App.—Corpus Christi 2008, no pet.)
(determining whether reasonable grounds existed on the basis of newly discovered
evidence). In Garcia, a defendant provided an affidavit in a motion for new trial of a
person stating that another party “told him of information that constituted newly
discovered evidence favorable to appellant, followed by an affidavit of someone in
appellant’s behalf stating that, though requested to do so, [the party] had refused to
make an affidavit thereto.” Id. The State, in Garcia, did not argue that the appellant
failed to allege or provide facts indicating that the evidence was newly discovered, but
instead contended that the affidavit was collateral and provided no indication that it was
4 To prevail the defendant must show the following: (1) the newly discovered evidence was unknown or unavailable to him at the time of his trial; (2) his failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in another trial. Lee v. State, 186 S.W.3d 649, 659–60 (Tex. App.—Dallas 2006, pet. ref'd); see also Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). 5 Appellant also does not allege that the information contained in the affidavit was Brady evidence or that it was not discovered due to ineffective assistance of counsel. Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution's suppression of evidence favorable to the accused upon request violated the due process clause of the Fourteenth Amendment).
13 probably true or would change the outcome of the trial. Id. at 31. We reasoned that, in
his motion, the appellant did not need to prove a prima facie case, and therefore did not
need to establish that the evidence was probably true or that it was not collateral;
instead, we found that the affidavit created a fact issue as to which statements
constituted admissible newly discovered evidence and the effect this evidence would
have on a new trial. Id. at 31–34. We specifically held that the trial court “abdicate[d] its
fact finding function and denie[d] the accused a meaningful appellate review.” Id. at 43.
Garcia, however, differs substantially from the present case because, in Garcia,
the appellant specifically alleged that his motion was based on the existence of new
evidence. See id. at 9. Furthermore, the appellant in Garcia provided the trial court, in
the affidavit attached to the motion, with facts supporting the proposition that the
evidence was unavailable at trial as the affiant explicitly stated that the evidence was
newly discovered. Id. at 9–12. This sufficiently demonstrated to the court that the
appellant was entitled to an opportunity to present these facts to the court in a hearing.
Id. at 43; see Hobbs, 298 S.W.3d at 203 (reasoning that facts must provide the trial
court with requisite notice of the basis for the relief claimed).
Appellant, instead, based his motion on the general grounds that the verdict was
contrary to the law and evidence, and, as the Court of Criminal Appeals has noted, “[a]
trial judge is certainly within his discretion in declining to set a motion alleging such a
general ground for an evidentiary hearing.” Clarke v. State, 270 S.W.3d 573, 580 (Tex.
Crim. App. 2008). Furthermore, appellant failed to provide any facts in support of a
proposition that the evidence was newly discovered and did not even allege that the
evidence was unavailable at trial. The trial court was thus not on notice of reasonable
14 grounds on which appellant could prevail on his motion and, therefore, unlike in Garcia,
the trial court had no fact-finding duty. See Garcia, 291 S.W.3d at 27; Clarke, 270
S.W.3d at 580; Hobbs, 298 S.W.3d at 203; Smith, 286 S.W.3d at 338 (reasoning that, to
be entitled to a hearing on a motion for new trial based on ineffective assistance of
counsel, appellant had to provide reasonable grounds for both prongs of the Strickland
test).
Accordingly, the trial court acted within its discretion in dismissing the motion
without a hearing. Appellant’s second issue is overruled.6
III. CONCLUSION
We affirm the trial court’s judgment.
___________________ ROGELIO VALDEZ Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 18th day of April, 2013.
6 The State also argues that the trial court acted within its discretion in denying the motion for new trial without a hearing because the motion was not presented to the trial court within ten days of its filing. However, we have assumed, without deciding, that the motion was properly presented.