Phillip Lee Bowen v. State

• Court: Court of Appeals of Texas
• Decided: October 9, 2008
• Docket: 01-08-00187-CR
• Status: Published

Opinion

Opinion issued October 9, 2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00187-CR

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PHILLIP LEE BOWEN, Appellant

v.

STATE OF TEXAS, Appellee

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On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1107103

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MEMORANDUM OPINION

          A jury convicted appellant, Phillip Lee Bowen, of aggravated sexual assault, see Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008), and assessed his punishment at seven years in prison and a $5,500 fine. In one issue, appellant contends that the evidence was factually insufficient to support his conviction.

          We affirm.

Background

          When she was seven years old, K.D. and her grandmother, Cheryl, began living with appellant, who was Cheryl’s boyfriend. At that time, K.D. had a bed-wetting problem at night. For that reason, either Cheryl or appellant would wake up during the night to take K.D. to the bathroom. The first time that K.D. suspected appellant had touched her inappropriately was one night after appellant had taken her to the restroom, and she woke up to find that she was not wearing her underwear. Because she had been asleep, K.D. did not recall whether appellant had touched her inappropriately on that occasion.

          The first time that K.D. remembered appellant “touching” her was an instance that occurred one night while she was asleep. K.D. woke up because she felt someone touching her. She turned over and saw appellant, who was touching her “private area” with his hand. Appellant used his finger to touch the inside of K.D.’s “private part.” K.D. did not tell anyone about the assault because she was afraid. Appellant continued to abuse K.D. until she was in the seventh grade. K.D. ultimately reported the abuse to a teacher, who reported the abuse to the authorities.

Factual Insufficiency

          In his sole issue, appellant contends, “The evidence is factually insufficient to support the jury’s verdict of guilty of aggravated sexual assault.”

A.      Standard of Review

          In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, No. PD-134-07, 2008 WL 2512832, at *4, 7 (Tex. Crim. App. June 25, 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient (1) when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007).

          We cannot reverse when the greater weight and preponderance of the evidence actually favors conviction. Roberts, 220 S.W.3d at 524. And we may not substitute our judgment for that of the jury merely because we would have reached a different result. Grotti, 2008 WL 2512832, at *4, 7 (citing Watson, 204 S.W.3d at 414). Instead, the record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury’s verdict. See Watson, 204 S.W.3d at 417.

          In conducting a factual-sufficiency review, we must 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).

B.      Analysis

          Pursuant to Penal Code section 22.021, a person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ or anus of a child younger than 14 years of age by any means. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), 2(B).

          At trial, K.D. testified that she first believed that appellant had touched her “private parts” because she was not wearing her underwear when she woke up one morning, and she knew that appellant had taken her to the bathroom during the night. K.D. stated that she did not remember appellant touching her during that incident because she was asleep.

          K.D. also told the jury about the first time that she did remember appellant touching her “private part.” K.D. testified that, one night while she was sleeping, she was awakened because she felt someone touching her. She turned over and saw that it was appellant, who had his hand in her underwear. K.D. testified that appellant put his finger inside her “private part,” i.e., her sexual organ. The evidence at trial also showed that K.D. was younger than 14 years old when this occurred.

          In support of his factual sufficiency challenge, appellant cites his own trial testimony. Appellant testified that he did not sexually assault K.D., nor did he ever touch her inappropriately. Appellant stated that he has never been accused of sexual abuse by anyone other than K.D.

          Appellant also contends that K.D.’s testimony is suspect because K.D. admitted that she did not recall appellant touching her during the first incident in which she described waking up without her underwear. Appellant contends that this testimony undermines K.D.’s other testimony regarding the first time that she actually remembered appellant touching her private parts. Appellant points out that, in the second incident, K.D. also testified that she had been asleep when she felt appellant touching her. Appellant posits that the factual similarity between the two incidences, i.e., that she was asleep, indicates that K.D. is “unable to distinguish reality from a possible dream.”

          We disagree with appellant. K.D. made clear in her testimony that, during the second incident, she felt someone touching her, she woke up, and she saw that it was appellant. She testified that she felt appellant place his finger in her private parts. Thus, while there are similarities between the two incidences, there is one significant difference: in the second described incident, K.D. testified that she was awake and witnessed appellant assaulting her.

          Moreover, it is well-established that a child victim’s testimony alone is sufficient evidence to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Perez v. State, 113 S.W.3d 819, 837–38 (Tex. App.—Austin 2003, pet. ref’d); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.—Dallas 1998, pet. ref’d). The record shows that the defense had ample opportunity, through cross-examination, to expose any inconsistencies or weaknesses in K.D.’s testimony and to explore its current theory that K.D. had dreamt the sexual assault.

          It was the jury’s role as fact finder to resolve any discrepancies or inconsistencies in the evidence, to determine the credibility and weight to be given the evidence, and to draw reasonable inferences from the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Concomitantly, the jury was free to believe or disbelieve all or part of any witness’s testimony, including that of K.D. or of appellant. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998).

          In this case, the jury chose to believe K.D. and to disbelieve appellant. The jury found K.D. credible, even after considering the defense’s cross-examination and appellant’s testimony. We must give due deference to the jury’s credibility finding. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

          Based on the record before us and the contentions asserted by appellant challenging the factual sufficiency of the evidence, the jury in this case was in the best position to evaluate K.D.’s credibility and to weigh the evidence. We give proper deference to those determinations. See id.

          After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or that the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. We hold that the evidence is factually sufficient to support the judgment of conviction.

          We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Higley.

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