Tieu, Thanh Dung v. The State of Texas--Appeal from 292nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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THANH DUNG TIEU, ) No. 08-01-00273-CR

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Appellant, ) Appeal from

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v. ) 292nd District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-0100057-SV)

O P I N I O N

Thanh Dung Tieu appeals his conviction for aggravated sexual assault of a child. A jury found Appellant guilty and assessed punishment at a fine of $10,000 and imprisonment for a term of forty years. We affirm.

FACTUAL SUMMARY

In the summer of 2000, seven-year-old Linda Nguyen lived in an apartment with her mother, her two sisters, her brother, and Appellant. Linda referred to Appellant as her Adad@ but it is possible that he is not her biological father. While Linda was in the first grade, Appellant made Linda watch Abad movies@ with him in the bedroom and he touched her inappropriately on several occasions. These assaults occurred while Linda=s mother was at work, and on some occasions while a babysitter was present elsewhere in the apartment. Linda described the assaults with her spoken testimony and with the aid of drawings and dolls. Appellant touched Linda between the legs with his hand. On another occasion, he put his tongue between her legs. Appellant also forced Linda to place her mouth on Athe middle of his legs@ or Aon his between his legs@ and Alick it.@ She described Ahis between his legs@ as Alike oval with lines and hair.@ Appellant placed a piece of candy on himself so that it would taste good when she licked it. After she licked it, Awhite stuff@ came out. On yet another occasion, Appellant made Linda lay on her stomach and he put Athe thing that middle of his leg into my butt.@ She told him that it hurt but he told her to wait and that it would be over in a little while.

Linda was afraid to tell anyone what had happened because Appellant told her not to tell anyone. Despite Appellant=s warning, Linda finally told her mother, Linh Nguyen, what Appellant had been doing to her. Linda told Linh that Appellant had done bad things to her. When Linh asked what he had done, Linda said Ajust like in the movie.@ Linda did not provide her with any details except that she told her that Appellant had made her lick his penis. Linh told Linda not to tell her grandmother. However, Linda informed her grandmother of the assaults only a few days later.

Pham Thi Thamh My Wolfe, Linda=s grandmother, also testified about Linda=s outcry to her. While visiting her grandmother, Linda began crying on the couch. When Mrs. Wolfe asked what was wrong, Linda said that her daddy had done bad things to her. She said that he had touched her vagina. Linda did not use the word Avagina@ but instead pointed to where Appellant had touched her. Mrs. Wolfe and her husband immediately went to Linh=s apartment and picked up all of the children. Over the next few days, Linda provided additional details of what had occurred. Appellant rubbed candy on his body and penis and made her lick it. Appellant also rubbed candy on Linda=s body and vagina and then licked her. Linda was afraid to tell anyone because Appellant told her that he would call the police and they would put her in jail.

Following Appellant=s arrest, Linh and the children moved into the Wolfes= home. Mr. Wolfe found two videotapes, one of which was labeled as triple x-rated. One of the tapes was unlabeled, so Mr. Wolfe played it to determine its content. He discovered that the second tape, which he described as Avery bad@ was also a triple x-rated video. Linda told her grandparents that she had watched the videotapes and Appellant had made her A[do] everything that=s in the movie.@ Lori Langston, a child advocate and interview specialist employed by the Dallas Children=s Advocacy Center, interviewed Linda on August 15, 2000. During the course of the interview, Linda communicated to Langston that she had been sexually abused by her Adad@ beginning when she was five years old. Linda described oral sex performed on her by the perpetrator, oral sex to the perpetrator=s body by Linda, and anal sex. Linda specifically told Langston that Appellant Aput his thingy in my butt@ and it kept hurting but he continued. Linda demonstrated what had been done to her through the use of stuffed toys. Linda described Appellant=s penis as round and straight and it felt like a finger, which she indicated by holding her finger straight out. When Linda told her mother about the assaults, Linh instructed her not to tell her grandmother because it would cause her to worry and die soon.

Dr. Donna Persuad, an associate professor of pediatrics at U.T. Southwestern Medical School and attending physician at Dallas Children=s Medical Center, performed a medical evaluation of Linda on August 16, 2000. Dr. Persuad assessed Linda=s genital and anal areas as normal but she explained that these findings did not rule out sexual abuse. The genital and anal openings have the ability to stretch so that they can accommodate levels of penetration without trauma. Further, both areas are capable of healing, particularly the anus. She would not expect to make medical findings where only slight penetration had occurred. In cases involving alleged anal penetration, the anal exam is normal in 90 percent of the cases.

Appellant did not testify nor offer any evidence in his own behalf. In fact, Appellant instructed his attorney to not cross-examine any of the witnesses. The jury found Appellant guilty of aggravated sexual assault by causing his mouth to contact her sexual organ as alleged in the indictment.

FACTUAL SUFFICIENCY

In Point of Error No. One, Appellant challenges the factual sufficiency of the evidence to support his conviction. He argues that the complainant=s testimony is not reliable or credible because she never used the word Apenis@ during her testimony, she was unable to describe Appellant=s genitalia, the medical examination was normal, and the State failed to call the complainant=s mother or the babysitters as witnesses.

Standard of Review

When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App . 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App. -El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Elements of the Offense

A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the child=s anus by any means and the child is younger than fourteen years of age. Tex.Pen.Code Ann. ' 22.021(a)(1)(B)(i), (2)(B)(Vernon Supp. 2003). The indictment charged Appellant with aggravated sexual assault pursuant to this section of the Penal Code.

Review of the Evidence

Because Appellant did not offer any contrary evidence, his sufficiency argument is necessarily that the evidence is so weak that the jury=s verdict is clearly wrong and manifestly unjust. With respect to Appellant=s argument that Linda never used the word Apenis@ during her testimony and could not describe Appellant=s genitalia, it is obvious from reading the record that Linda was uncomfortable in discussing the sexual assaults committed against her. Linda may have been hesitant in her testimony but during the interview with Langston, she described Appellant=s penis or Athingy@ as she referred to it. In examining the sufficiency of the evidence in sexual offenses involving children, reviewing courts have traditionally been mindful of a child=s lack of technical knowledge in accurately describing the parts of the body. See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App. 1977); Karnes v. State, 873 S.W.2d 92, 96 (Tex.App. Dallas 1994, no pet.); O=Hara v. State, 837 S.W.2d 139, 142 (Tex.App. Austin 1992, pet. ref=d); Chase v. State, 750 S.W.2d 41, 44 (Tex.App. Fort Worth 1988, pet. ref=d). As a matter of public policy, the appellate courts of this state do not expect child victims of crime to testify with the same clarity and ability as is expected of mature and capable adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990); Wallace v. State, 52 S.W.3d 231, 235-36 (Tex.App.--El Paso 2001, no pet.); Gottlich v. State, 822 S.W.2d 734, 741 (Tex.App. Fort Worth 1992, pet. ref=d). Consequently, a child=s use of unsophisticated language will not render the evidence legally or factually insufficient to establish guilt. Wallace, 52 S.W.3d at 235-36. Instead, we will review all of the evidence to determine whether the evidence is factually sufficient to support the jury=s finding of guilt. Despite Linda=s apparent unease and her unsophisticated descriptions of the events, the prosecutor succeeded in eliciting sufficient details about the assaults through Linda=s testimony and with the aid of drawings and dolls. With respect to the allegations at issue in this case, Linda testified that Appellant made her lay on her stomach and he placed what she referred to as Athe thing that middle of his legs@ into her butt. Taken together with the other evidence, this is sufficient to show that Appellant penetrated Linda=s anus with is penis.

As evidence of credibility, the outcry Linda made to her grandmother is consistent with the statements made during the interview by Langston, and those statements are consistent with her testimony at trial. Further, Dr. Persuad explained the absence of medical findings. Linda=s delay in making an outcry is reasonably explained by Appellant=s instructions that she should not tell anyone or he would call the police to take her away. The State=s failure to call either the babysitter or Linda=s mother as witnesses does not render the evidence actually offered by the State so weak as to render the evidence factually insufficient. Our task is to examine the evidence admitted at trial and determine whether it supports the jury=s verdict. In summary, the jury had ample opportunity to assess the complainant=s credibility and there is no reason to overturn their resolution of that issue. Point of Error No. One is overruled.

ADMISSION OF HEARSAY

In Point of Error No. Two, Appellant contends that the trial court abused its discretion in admitting certain hearsay statements made by the complainant to her grandmother because the State failed to establish compliance with Article 38.072 of the Texas Code of Criminal Procedure which allows admission of certain hearsay testimony in the prosecution of offenses committed against children twelve years of age or younger. See Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon Pamph. 2003)(the outcry statute). The outcry statute applies only to statements made (1) by the child against whom the offense was allegedly committed, and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Tex.Code Crim.Proc.Ann. art. 38.072, ' 2. To be admissible under this statute, the child=s statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse. See Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990); Sims v. State, 12 S.W.3d 499, 500 (Tex.App. -Dallas 1999, pet. ref=d); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App. -Houston [14th Dist.] 1996, pet. ref=d). A trial court has broad discretion in determining the admissibility of outcry statements pursuant to this statute, and we will not disturb the trial court=s ruling absent an abuse of discretion. See Garcia, 792 S.W.2d at 92. An abuse of discretion occurs only where the trial court=s ruling falls outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(opinion on reh=g).

Pursuant to Article 38.072, ' 2(b), the State provided notices to Appellant that it intended to offer outcry testimony through Mrs. Wolfe and Lori Langston. See Tex.Code Crim.Proc.Ann. art. 38.072, ' 2(b). When a dispute arose during trial as to whether Linh Nguyen was actually the proper outcry witness, Appellant objected to any outcry testimony from Mrs. Wolfe because she was not the first person to whom Linda made a statement about the assaults. The trial court conducted a hearing outside the presence of the jury to resolve this issue and both Linh and Mrs. Wolfe testified. At the hearing=s conclusion, Appellant=s attorney stated that he had no objection to Mrs. Wolfe testifying as the outcry witness in Cause Number F01-00055-V. Appellant=s attorney further stated that the only objections he had to the evidence elicited during this hearing was the testimony concerning the assaults committed by Appellant against Linda=s sister, Julie. The trial court ruled that Mrs. Wolfe was the proper outcry witness in Cause Number F01-00055-V.

In the presence of the jury, the prosecutor asked Mrs. Wolfe to tell the jury the substance of Linda=s statements to her. Appellant objected to any further outcry testimony from Mrs. Wolfe because the Afactual situation has changed substantially@ since the hearing held outside of the jury=s presence. The court sustained that objection and a bench conference ensued regarding the timing of Linda=s discussions with various potential outcry witnesses. After some discussion in which Appellant=s attorney admitted he was confused about the timing of the various statements and interviews, the trial court overruled Appellant=s objection but instructed the prosecutor to clarify who talked to the complainant and when. The judge instructed Appellant=s attorney to object if the witness started going into Afacts.@ After the prosecutor established the timing of the statements, Mrs. Wolfe then testified about the statements Linda had made to her, including the statement that Appellant made Linda lick his penis. Appellant raised no objection to this testimony.

The State argues that because Appellant did not object to Mrs. Wolfe=s testimony, he failed to preserve error. We agree. Appellant=s initial objections made outside the presence of the jury do not preserve the error complained of on appeal. Rule 103(a)(1) of the Rules of Evidence provides that when the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections. Tex.R.Evid. 103(a)(1). Here, the court sustained Appellant=s objection, in part, rather than overruling it. Therefore Appellant was obligated to object when Mrs. Wolfe=s testimony exceeded what the court ruled it would allow. Although Appellant objected during Mrs. Wolfe=s testimony before the jury, he did not adhere to the trial court=s instructions to object if she started going into the substance of the statements. Therefore, we find that he has failed to preserve his complaints for review. Tex.R.App.P. 33.1; see Davidson v. State, 80 S.W.3d 132, 138 (Tex.App.--Texarkana 2002, pet. ref=d). Point of Error No. Two is overruled.

ADMISSION OF VIDEOTAPES

In his final point of error, Appellant asserts that the trial court abused its discretion in admitting the two pornographic videotapes into evidence because they were not relevant. The admissibility of evidence is within the trial court=s discretion. Duckett v. State, 797 S.W.2d 906, 913 (Tex.Crim.App . 1990); Contreras v. State, 915 S.W.2d 510, 518 19 (Tex.App. El Paso 1995, pet. ref=d). Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.), cert. denied, 510 U.S. 966, 114 S. Ct. 445, 126 L. Ed. 2d 378 (1993); Montgomery, 810 S.W.2d at 391. As long as the trial court=s ruling was at least within the zone of reasonable disagreement, we will not intercede. Montgomery, 810 S.W.2d at 391.

Evidence is Arelevant@ if it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex.R.Evid. 401; Moreno, 858 S.W.2d at 463; Contreras, 915 S.W.2d at 519. Relevancy is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a matter properly provable in the case. Montgomery, 810 S.W.2d at 375. Moreover, the evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Id. at 376; Contreras, 915 S.W.2d at 519.

Linda testified that Appellant made her watch these videotapes and then perform the acts depicted in them. Thus, Appellant used the videotapes to induce Linda=s participation in the assaultive conduct, and as such, they were an integral part of the sexual assaults he committed against Linda. The trial court did not err in finding the evidence relevant. Point of Error No. Three is overruled. Having overruled each point of error, we affirm the judgment of the trial court.

January 23, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 5

McClure, Chew, and Hill, JJ.

Hill, J. (sitting by assignment)

(Do Not Publish)