COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NOS. 2-07-375-CR 2-07-376-CR
RICHARD MORGAN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. Introduction
In four points, Appellant Richard Morgan makes a confrontation clause
challenge under both the United States and Texas Constitutions to evidence
excluded under Texas Rule of Evidence 412 (the “rape shield law”). He also
challenges the legal and factual sufficiency of evidence to support his
1 … See Tex. R. App. P. 47.4. conviction for aggravated sexual assault of a child younger than fourteen years
of age. We affirm.
II. Factual and procedural history
A grand jury indicted Appellant for two counts of indecency with a child
and five counts of aggravated sexual assault of a child. The complainant is
K.W., who was thirteen years old at the time of the alleged offenses. Appellant
pleaded not guilty, and the case was tried to a jury.
Arlington Police Officer Mary Almy, assigned to the juvenile unit, testified
that she received initial information about K.W. on December 11, 2006, that
K.W. was thirteen years old, and that she was to be interviewed the next day,
December 12. A CPS investigator interviewed K.W. on December 12; Officer
Almy observed the interview from a monitor hooked to a two-way closed circuit
television. Police had a description of a suspect by that time, a picture of
Appellant provided by K.W.’s grandmother, and Appellant’s last name. In the
interview, K.W. denied any type of sexual contact with Appellant to the CPS
investigator. K.W. also denied any sexual conduct with Appellant to Officer
Almy and other police officers.
At a second interview with the same CPS investigator the following day,
Officer Almy observed that K.W. admitted to engaging in sexual conduct with
the suspect, who by then had been identified as Appellant. The officers
2 referred K.W. to Cook Children’s Medical Center for a CARE team examination.
Crystal Utley, a former college-level pediatric nursing teacher and member of
the Cook Children’s CARE team, performed the exam. She testified that K.W.
provided a history of recent sexual activity involving vaginal, anal, and oral
intercourse. Utley’s visual exam was consistent with the sexual activity
described by K.W. She found a healed transection of the hymen, meaning it
was a complete tear all the way to the base. But she stated that it was not
possible to date the tear since healing occurs quickly, and the tear could have
occurred up to a year before the exam. She found no evidence of trauma of the
anus or vagina. But she explained that an anal exam may be normal even after
penetration.
K.W. testified that she met Appellant in the fall of 2006 while living with
her grandmother in an Arlington condominium. Appellant, a maintenance
worker at the complex, had seen K.W. around the complex and initiated
conversation with K.W. by asking for her name. K.W. stated that Appellant
later left a note on the passenger door of her family’s truck, asking for her
phone number; she wrote her number down and gave it to Appellant while he
waited outside. K.W. testified that she talked to him that evening and revealed
her age to Appellant and his nephew P.J. during the conversation. K.W.
3 testified that Appellant responded that “age didn’t matter and that he knew
[she] was 13 and it was okay.”
K.W. testified that she and Appellant first arranged to see each other
when K.W. was spending the night at a friend’s apartment. K.W. gave
Appellant directions to her friend’s apartment, told the friend she was meeting
her brother, and walked over to Appellant’s truck, which by then was parked
inside the apartment complex. K.W. stated that the two kissed inside the truck
and that Appellant touched her breasts with his hands and mouth. K.W.
testified that he “might have touched [her] vagina” but it was “over [her]
pants.” She testified this incident lasted about thirty minutes. She stated that
“kissing and touching” occurred in Appellant’s maroon car multiple times in
parking areas around the condominium complex.
K.W. testified that the next meeting between K.W. and Appellant
occurred when Appellant picked K.W. up again in the maroon car and drove off
the condominium complex to an apartment complex. K.W. testified that
Appellant asked her if she “wanted to get in the back seat” and she said “yes.”
K.W. stated that she took off her clothes, they had sex, i.e., vaginal
intercourse, and Appellant performed oral sex on her.
K.W. related details of her next encounter with Appellant at a motel in
Arlington with pink doors and palm trees on the signs. K.W. recalled that it
4 was Appellant’s idea to go there. The two had vaginal intercourse at the motel
while pornography, paid for by Appellant, played on the television. For their
next encounter, K.W. testified that Appellant picked her up at her junior high
school at 9:00 a.m. and drove her to a yellow house in Fort Worth, where he
said he lived with his girlfriend. K.W. described the dogs that were in the
house. While there, Appellant and K.W. had vaginal intercourse, and each
performed oral sex on the other. K.W. testified that Appellant had previously
given her a pornographic videotape depicting fellatio in order to teach K.W. to
perform it. K.W. also testified that anal intercourse occurred while they were
at this house and that it was painful for her. K.W. stated that she had to crawl
out the window when others arrived at the house and had to jump over a
chainlink fence. Appellant allegedly helped her over the fence to get to the car.
K.W. testified that Appellant told her to tell people that she was “his little
sister” if she were ever questioned about why they were together.
The last encounter between K.W. and Appellant occurred in December
2006, when Appellant threw something at K.W.’s window late at night and told
her that he would come back and pick her up. He picked her up at around 2:00
a.m. in a black truck and suggested she bring blankets. Appellant brought his
nephew P.J., and the three went to an elementary school. Appellant told P.J.
to park the car while he and K.W. went over to an area near the exterior of the
5 school and engaged in vaginal intercourse on the blankets under an awning over
a sidewalk.
When they returned to the condominiums, K.W. saw her grandmother
outside waiting for her; Appellant let K.W. out of the car away from her
condominium. K.W. testified that her grandmother was upset and crying and
that she had called the police. K.W. stated that she did not tell her
grandmother or the police the “truth” about any sexual conduct at that time.
She told her grandmother a story that she made up—that she had been with a
guy named Eric.
K.W. testified that police officers took her to the Arlington Police
Department where a CPS worker named Emily Jamada interviewed her. K.W.
confirmed that she told Jamada “nothing happened.” K.W. did not know
Appellant’s first name at that time; she assumed it was “Amber” because she
had seen that name tattooed on one of Appellant’s arms and “Morgan” on the
other. The police obtained a photograph of Appellant that her grandmother
found hidden behind her dresser, as well as K.W.’s cell phone containing
voicemail messages from Appellant.
K.W. stated that she later talked with her brother, who was twenty years
old and “very understanding,” and that she told him what had really happened
with Appellant. She then told her grandmother about the sexual nature of the
6 relationship before returning to the police department to again speak with
Jamada. K.W. testified that she told Jamada details about instances of sexual
conduct with Appellant at that time. With Officer Almy, she viewed a photo
lineup and picked out Appellant’s photo.
The police had K.W. “text” Appellant, who returned her call the next day.
K.W. confirmed that police recorded Appellant’s conversation with her, which
Appellant urged her to hide the photograph of himself that he had given her and
told her to say that she had been with his nephew, P.J., if she were asked.
K.W. acknowledged that Appellant was concerned about being arrested if the
police found his picture. The State introduced the recording and photograph of
Appellant into evidence along with photographs of the yellow house with the
dogs and the chain link fence, the maroon car sitting in the driveway of the
house, and photographs of Appellant’s tattoos.
Appellant’s sister, called by the defense, testified that she was present
several months later when K.W. called Appellant’s girlfriend, who put the call
on speakerphone so that Appellant’s sister heard both ends of the conversation.
According to Appellant’s sister, K.W. was crying, expressed that she was
“sorry,” and stated that “she was forced” to tell police that she had sex with
Appellant because her grandmother was threatening to throw her out and she
had nowhere else to go, that they “forced [her] into [a] confessi[on],” and that
7 she never had sex with Appellant; “it never happened.” K.W. testified that she
told Appellant’s girlfriend she would write a letter stating that sex with
Appellant never happened and that she would have been willing to lie to protect
Appellant but that she never wrote the letter.
The jury found Appellant guilty of two counts of indecency with a child
and five counts of aggravated sexual assault of a child. Appellant now appeals
his conviction on the aggravated sexual assault counts.
III. Right to confront and cross-examine witness under United States and Texas Constitutions
At a hearing on pre-trial matters, the State requested that K.W. be seated
as a witness before the jury was brought in. When she was called to testify,
K.W. was brought to the witness stand and seated prior to the jury entering the
courtroom. Appellant objected that the entry and seating of K.W. outside the
jury’s presence, with the consequent inability of any jury member to see that
she was pregnant, violated his right of confrontation under the Texas and
United States Constitutions because she had not taken the stand “in a normal
capacity as a witness. She has been placed on the stand prior to the jury
entering the room because she’s apparently pregnant.” Appellant further stated
8 that K.W.’s pregnancy may “have a relevant impact on her credibility with the
jury.” The trial court overruled his objection.2
Appellant contends by his first two points that the trial court violated his
Sixth and Fourteenth Amendment rights under the United States Constitution
and his rights under Article I, Section 10 of the Texas Constitution to confront
and cross-examine K.W. because the trial court prohibited him from showing
the jury that K.W. was apparently pregnant.3 Appellant argues that he was
denied his right to confront K.W. because her apparent pregnancy should not
have been excluded under Texas Rule of Evidence 412 because it was relevant
and probative to demonstrate “bias or motive” on her part to lie about any
sexual activity between K.W. and Appellant. He also argues that the probative
value of the evidence outweighed any danger of unfair prejudice.
The standard of review for an alleged violation of the constitutional right
to confront a witness is abuse of discretion. Lagrone v. State, 942 S.W.2d
2 … The trial court stated on the record, at the time Appellant raised his objection and again at the end of the trial, that it had all of the State’s witnesses seated before the jury was brought in, with the exception of Crystal Utley. 3 … Because Appellant has not argued that the protections in the Texas Constitution exceed or differ from the protections in the United States Constitution, we only address Appellant’s arguments under the United States Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830, 115 S. Ct. 103 (1994).
9 602, 613 (Tex. Crim. App.), cert. denied, 522 U.S. 917, 118 S. Ct. 305
(1997). “Trial judges retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’[s] safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 1435 (1986); accord Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct.
1105, 1110 (1974) (holding right to cross-examination is “[s]ubject always to
the broad discretion of a trial judge to preclude repetitive and unduly harassing
interrogation”); LaPointe v. State, 166 S.W.3d 287, 296 n. 11 (Tex.
App.—Austin 2005, pet. dism’d).
Each confrontation clause issue must be weighed on a case-by-case
basis, carefully taking into account the defendant’s right to cross-examine and
the risk factors associated with the admission of the evidence. Lopez v. State,
18 S.W.3d 220, 222 (Tex. Crim. App. 2000). In weighing whether evidence
must be admitted under the confrontation clause, the trial court should balance
the probative value of the evidence sought to be introduced against the risk its
admission may entail. Id.
Texas Rule of Evidence 412 governs the admissibility of a complainant’s
prior sexual relationships with third parties in a sexual assault case. Tex. R.
10 Evid. 412. Specific instances of a victim’s past sexual conduct are inadmissible
unless (1) the evidence falls within one of five circumstances listed in rule
412(b)(2) and (2) the trial court finds that the probative value outweighs the
danger of unfair prejudice. Id.; Boyle v. State, 820 S.W.2d 122, 148 (Tex.
Crim. App. 1989) (op. on reh’g) overruled on other grounds by Gordon v. State,
801 S.W.2d 899, 911 n. 13 (Tex. Crim. App. 1990). Rule 412(b) provides:
In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
11 (3) its probative value outweighs the danger of unfair prejudice.
Tex. R. Evid. 412(b).4
The court of criminal appeals has expressed the rationale of provisions
such as rule 412 by stating that
evidence of a rape victim’s prior sexual activity is of dubious probative value and relevance and is highly embarrassing and prejudicial. Often such evidence has been used to harass the prosecuting victim. Sponsors of these statutes assert that they encourage victims of sexual assault to report the crimes without fear of having their past sexual history exposed to the public.
Allen v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985) (quoting Bell v.
Harrison, 670 F.2d 656, 658 (6th Circ. 1982)).
The right to confront and to cross-examine is not absolute and may, in
appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process. Id. at 931 (holding section 21.13 of the Texas Penal
Code, the precursor to rule 412, was constitutional and did not, on its face,
violate the accused’s right to confrontation); see also Chambers v. Mississippi,
410 U.S. 284, 295, 93 S. Ct. 1038, 1046 (1973). Moreover, the Constitution
4 … “Past sexual behavior” has been interpreted to include sexual behavior that occurs “before trial” but after the alleged offense. Cuyler v. State, 841 S.W.2d 933, 936 (Tex. App.—Austin 1992, no pet.). Rule 412 governs the admission of all evidence of extraneous sexual behavior of the complaining witness, including sexual behavior that occurred after the alleged offense. Id. One of the main policy reasons for rule 412 is to prevent abusive, embarrassing, and irrelevant inquiries into sexual assault victims’ lives. Id.
12 requires only the introduction of otherwise relevant and admissible evidence.
See United States v. Nixon, 418 U.S. 683, 711, 94 S. Ct. 3090, 3109 (1974).
The trial took place on October 2, 2007, which—as the State points
out—was almost ten months after K.W. told authorities about the sexual
encounters, meaning she was impregnated by someone else after these alleged
offenses occurred. K.W.’s credibility was an issue in this case because she
was the sole witness to the alleged sexual conduct by Appellant. Her
testimony was contradicted by her own previous denials that any such conduct
had occurred. But her pregnancy, by itself, was not an indicator of a motive
or bias to lie. See Pedro v. State, No. 03-06-00066-CR, 2007 WL 619492, at
*6 (Tex. App.—Austin Feb. 27, 2007, no pet.) (mem. op., not designated for
publication) (holding“evidence indicating Y.C. had intercourse with someone
other than appellant does not, by itself, tend to prove or disprove that she
would fabricate sexual assault charges against the appellant”).
When K.W. was on the witness stand, the jury had an unobstructed view
of her face, so they could observe her demeanor and assess her credibility. Cf.
Romero v. State,173 S.W.3d 502, 507 (Tex. Crim. App. 2005) (holding that
defendant’s right to confrontation was infringed when witness was allowed to
testify in a disguise showing only his ears, tops of his cheeks and bridge of his
13 nose).5 Moreover, Appellant was not prevented from cross-examining K.W.,
and he did question her about her initial denials of any sexual conduct with
Appellant to the first officer who questioned her, the CPS officer, other officers,
her mother, her grandmother, and Appellant’s girlfriend. K.W. denied that she
had told Appellant’s girlfriend that there had been no sex. She admitted initially
denying any sexual conduct to the others. Neither during cross-examination nor
outside the jury’s presence did Appellant inquire as to why K.W. decided to
retract her denials and testify that specific sexual activity occurred. On redirect
examination by the State, K.W. stated that she had denied that anything sexual
happened because she had not wanted anything bad to happen to Appellant
and that she still had feelings for him, and she admitted that her grandmother
had threatened to make her leave and that she has had to leave and go to live
with her mother.
5 … The Sixth Amendment protects four aspects of confrontation: (1) physical presence; (2) oath; (3) cross-examination; and (4) observation of demeanor by the trier of fact. Romero, 173 S.W.3d at 505 (citing Maryland v. Craig, 497 U.S. 836, 845–50, 110 S. Ct. 3157, 3164–65 (1990) (finding sufficient assurance of reliability in a procedure allowing a child witness to testify by closed-circuit television that denied one element—physical presence—when the other three were unimpaired)). Absent any argument by Appellant otherwise, we will assume that his contention here is that the fourth element—observation of demeanor—was implicated by the procedure followed in this case.
14 Any inference that might be drawn from K.W.’s apparent pregnancy is
speculation. K.W. was fourteen years old at the time of trial. There is no
evidence suggesting that K.W. had any motive to falsely accuse Appellant.
Appellant does not suggest any logical link between her pregnancy and any
motive or bias that would reflect on her credibility or cause her to falsely accuse
him. In any event, any probative value could not outweigh the danger of unfair
prejudice from exhibiting her post-offense pregnancy. Revealing to the jury that
at a point after the alleged offenses occurred she became pregnant by someone
else could only have subjected her to ridicule, embarrassment, and humiliation.
See Stephens v. State, 978 S.W.2d 728, 735 (Tex. App.—Austin 1998, pet.
ref’d) (holding allowing evidence of pregnancy of complainant when raped to
show other past sexual conduct where motive for fabrication of accusations
against defendant was non-existent would have contravened intent of rule 412
and subjected her to ridicule, embarrassment, and humiliation).
We hold that the trial court did not abuse its discretion by preventing the
jury from viewing K.W.’s pregnancy because Appellant has not shown that her
pregnancy was relevant to motive or bias and because the exclusion served to
avoid prejudice to K.W. and confusion of the issues. See id.; see also
McGlothlin v. State, 260 S.W.3d 124, 130–31 (Tex. App.—Fort Worth 2008,
pet. ref’d) (holding exclusion of evidence that child complainant sexually abused
15 her same-age cousins not denial of right of confrontation where there was other
evidence of prior sexual conduct and evidence had slight probative value and
posed danger of being overwhelmingly unfairly prejudicial); Ladesic v. State, No.
02-05-00444-CR, 2007 WL 2963755, at *5 (Tex. App.—Fort Worth Oct. 11,
2007, no pet.) (holding trial court’s refusing cross-examination of complainant
about notes related to sexual relations with other boys not denial of
confrontation when court allowed other examination regarding conduct with
boys and any probative value far outweighed by danger of unfair prejudice
under Rule 412(b)(3)); Herrera v. State, No. 08-01-00152-CR, 2004 WL
321681, *5–6 (Tex. App.—El Paso Feb. 20, 2004, pet. ref’d) (mem. op., not
designated for publication) (holding no abuse of discretion and no denial of
confrontation by excluding diary notes of other possible sexual involvements by
victim where her possible bias and motive to concoct sexual assault charge
were developed by evidence of desire not to move to new city and anger based
on physical abuse of mother and victim by defendant). We overrule Appellant’s
first and second points.
IV. Legal and factual sufficiency of evidence
Appellant argues in his third and fourth points that the evidence was
legally and factually insufficient to prove the sexual assaults, specifically
arguing that K.W.’s testimony was “ambiguous” and lacked credibility.
16 A. Standards of review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
17 Crim. App. 2007). We must presume that the factfinder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the
evidence supporting the conviction, although legally sufficient, is nevertheless
so weak that the factfinder’s determination is clearly wrong and manifestly
unjust or whether conflicting evidence so greatly outweighs the evidence
supporting the conviction that the factfinder’s determination is manifestly
unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d
at 414–15, 417. We cannot conclude that a conviction is clearly wrong or
manifestly unjust simply because we would have decided differently than the
jury or because we disagree with the jury’s resolution of a conflict in the
18 evidence. Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.
We may not simply substitute our judgment for the factfinder’s. Johnson v.
State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a
different result is appropriate, we must defer to the jury’s determination of the
weight to be given contradictory testimonial evidence because resolution of the
conflict “often turns on an evaluation of credibility and demeanor, and those
jurors were in attendance when the testimony was delivered.” Johnson, 23
S.W.3d at 8. Thus, unless we conclude that it is necessary to correct manifest
injustice, we must give due deference to the factfinder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9. Our deference in this regard safeguards the defendant’s
right to a trial by jury. Lancon, 253 S.W.3d at 704. An opinion addressing
factual sufficiency must include a discussion of the most important and relevant
evidence that supports the appellant’s complaint on appeal. Sims v. State, 99
S.W.3d 600, 603 (Tex. Crim. App. 2003); see Laster v. State, 275 S.W.3d
512, 517–18 (Tex. Crim. App. 2009).
B. Applicable law
Under Texas Penal Code section 22.021(a), a person commits the offense
of aggravated sexual assault if he intentionally or knowingly (i) causes the
19 penetration of the anus or sexual organ of a child by any means; (ii) causes the
penetration of the mouth of a child by the sexual organ of the actor; (iii) causes
the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor; (iv) causes the anus of a child to
contact the mouth, anus, or sexual organ of another person, including the actor;
or (v) causes the mouth of a child to contact the anus or sexual organ of
another person, including the actor; and if the victim is younger than fourteen
years of age. Tex. Penal Code Ann. §§ 22.021(a)(1)(B), (2)(B) (Vernon Supp.
2008).
C. Analysis
It was undisputed that K.W. was thirteen years old at the times of the
alleged offenses. The jury heard extensive evidence from K.W. regarding four
specific instances when she and Appellant engaged in sexual intercourse,
including vaginal, oral, and anal intercourse. The jury also heard about the
initial fondling that occurred when K.W. and Appellant first started to see one
another as well as oral sex performed by both individuals. Beyond the
descriptions of the sexual behavior, K.W. was also able to testify in detail about
the locations of each incident of sexual intercourse and fondling; she described
the maroon car, the black truck, the motel, the elementary school, and the
yellow house with the chain-link fence and dogs. The trial court admitted into
20 evidence photographs taken by police of the maroon car and of the yellow
house and dogs, which confirmed K.W.’s descriptions.
K.W. was also able to describe Appellant’s tattoos located on the
backside of both his arms, and the jury received photos of the tattoos. The jury
heard testimony by the CARE team member who had conducted a sexual
assault examination and had observed a transection on K.W.’s hymen. The jury
received exhibits showing a note allegedly left by Appellant for K.W. and a
crumpled photo of Appellant that K.W. had in her possession. The jury also
heard taped phone call messages from Appellant left on K.W.’s voicemail as
well as the recorded conversation between them in which Appellant told K.W.
to hide his picture or she would not see him again for several years.
Considering K.W.’s highly detailed testimony, the consistent results of the
CARE team exam, and the corroborating photographs and recorded
conversations, we hold that a rational jury could have concluded beyond a
reasonable doubt that Appellant intentionally or knowingly penetrated K.W.’s
female sexual organ with his penis or caused K.W.’s female sexual organ to
contact his sexual organ; caused K.W.’s female sexual organ to contact his
mouth, penetrated K.W.’s anus with his penis or caused her anus to contact his
sexual organ; caused her mouth to contact his sexual organ; and knew that
K.W. was younger than fourteen years of age at the time. Viewing the
21 evidence in the light most favorable to the prosecution, we hold the evidence
was legally sufficient to support the jury’s verdict. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. We therefore overrule
Appellant’s third point.
Viewing all the evidence in a neutral light, we consider that K.W. initially
denied to the police, the CPS investigator, and her grandmother that any sexual
activity took place with Appellant. We consider Appellant’s sister’s testimony
that K.W. had told Appellant’s girlfriend she was forced to say that she had
intercourse with Appellant in order to remain at her grandmother’s home and
that “it never happened.” We also consider that K.W. admitted under cross-
examination that her testimony regarding Appellant’s use of a vibrator to
penetrate her sexual organ was not part of her statements to police and to CPS
or her outcry to her family. But K.W.’s credibility and the weight of her
testimony were matters for the jury to resolve. Viewed in a neutral light, we
cannot say that the evidence was so weak that the verdict was clearly wrong
and manifestly unjust or that the conflicting evidence so greatly outweighed the
evidence supporting the conviction that the jury’s determination was manifestly
unjust; thus, the evidence if factually sufficient to support the jury’s verdict.
See Lancon 253 S.W.3d at 704; Watson, 204 S.W.3d at 417. We therefore
overrule Appellant’s fourth point.
22 V. Conclusion
Having overruled all four of Appellant’s points, we affirm the trial court’s
judgments.
PER CURIAM
PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: May 14, 2009