Gary Edwin Wheeler v. State of Texas--Appeal from 132nd District Court of Scurry County

11th Court of Appeals

Eastland, Texas

Opinion

Gary Edwin Wheeler

Appellant

Vs. No. 11-00-00267-CR -- Appeal from Scurry County

State of Texas

Appellee

The jury convicted Gary Edwin Wheeler of the offense of indecency with a child for engaging in sexual contact by touching a child=s genitals. The jury assessed appellant=s punishment at confinement for five years. We affirm.

Appellant presents four points of error. In the first and second points, he challenges the legal and factual sufficiency of the evidence. In order to determine if the evidence is legally sufficient, we must review 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. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine: (1) whether the evidence in support of a vital fact is so weak that the finding is clearly wrong and manifestly unjust or (2) whether the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

Three witnesses testified at trial: the complainant, K.W., who was appellant=s 15-year-old stepdaughter; the complainant=s cousin, Kynna Couch; and appellant=s friend, Jose Luis Riojas. All three were present in Riojas=s car on October 31, 1999, when the offense occurred. On that night, Couch and K.W. wanted to do something scary for Halloween, so they asked appellant if they could go. Appellant would only allow them to go if accompanied by an adult. Riojas talked appellant into going. Couch drove because appellant and Riojas were Adrunk.@ They went to two cemeteries and looked around. K.W. testified that, while she was leaning back on the hood of the car looking at the stars, appellant touched her knee and rubbed her leg a little bit. K.W. testified that appellant had never before done anything like that to her and that it made her uncomfortable. K.W. decided that it was time for them to leave. Then, as K.W. was holding the front seat up so that appellant could get in the back seat, appellant Abrushed up against@ K.W., and his hand touched her Abottom.@ Although K.W. did not want to ride in the back seat with appellant because appellant was Amessing with@ her, Riojas insisted that she get in the back so he could ride in the front to monitor Couch=s driving. While in the back seat on the way home, appellant almost immediately put his head in K.W.=s lap so that the back of his head was touching her stomach. He rubbed his head up and down along her midsection and upper midsection, touching from her breasts to her thighs. K.W. testified further that, although she closed her legs together tightly and placed her hand between appellant=s head and her legs to try to shield herself from appellant=s head, appellant touched her Aprivate parts@ in a Agroping@ manner over her clothes while he Awas kind of kissing [her] hand.@ K.W. stated that her Aprivate parts@ referred to her genitals and vagina. Appellant passed out sometime before they got back home.

Neither Riojas nor Couch saw appellant touch K.W. inappropriately at any time, and they did not hear anything unusual during the drive home. Both testified that appellant passed out at some point after leaving the second cemetery. Couch testified that, while they were at one of the cemeteries, appellant said that Ahe needed a piece of good ass because his wife wasn=t giving it to him at home.@ Later that night, K.W. told Couch what had happened in the back seat of the car.

The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981). We hold that the evidence is legally sufficient to support appellant=s conviction because a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We also hold that the evidence is factually sufficient because the evidence was not so weak or the jury=s finding so contrary to the great weight of the evidence as to be clearly wrong or manifestly unjust. There is evidence showing that appellant touched K.W.=s genitals through her clothes. Such touching constitutes an offense under TEX. PENAL CODE ANN. ' 21.11 (Vernon Supp. 2002), which explicitly provides that Aany touching@ of a child=s genitals, Aincluding touching through clothing,@ is an offense if it is committed with the intent to arouse or gratify a sexual desire. The first and second points of error are overruled.

In his third point, appellant contends that the trial court erred by not allowing him to cross-examine K.W. regarding her prior medical diagnosis and treatment because the evidence was relevant to K.W.=s credibility. Outside the presence of the jury, K.W. testified that she had been to a rehabilitation center about one year prior to this offense where she was treated for depression, suicide attempts, and anger issues. The record shows that the trial court sustained the State=s objection and prohibited appellant from inquiring about K.W.=s prior diagnosis and treatment. During his offer of proof, appellant showed that K.W. took her antidepressant medication infrequently and that she did not recall taking her medication on the day of the offense. Nothing in the offer of proof showed that K.W.=s condition affected either her perceptual capacity at the time of the crime or her credibility as a witness. See Lagrone v. State, 942 S.W.2d 602, 612-13 (Tex.Cr.App.), cert. den=d, 522 U.S. 917 (1997). Consequently, we hold that the trial court did not abuse its discretion in excluding the testimony. The third point of error is overruled.

In his final point, appellant complains of various statements made by the prosecutor during closing argument. There are four categories of proper jury argument: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to the arguments of opposing counsel; and (4) pleas for law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex.Cr.App.1992), cert. den'd, 509 U.S. 926 (1993).

Appellant first complains that the prosecutor stated that appellant Asexually assaulted@ K.W. The trial court sustained appellant=s objection and instructed the jury to disregard the prosecutor=s comment. Although he was not charged with Asexual assault,@ appellant was charged with an offense involving Asexual contact.@ The trial court=s instruction to disregard cured the error in the prosecutor=s inadvertent reference to this offense as a sexual assault rather than one involving sexual contact. See Martinez v. State, 17 S.W.3d 677, 691 (Tex.Cr.App.2000).

Next, appellant complains of the prosecutor=s summation of the evidence presented by Riojas. The prosecutor stated that Riojas admitted that K.W. told him that she did not want to ride in the back with appellant because he Ahad grabbed her on her ass.@ The trial court responded to appellant=s objection by instructing the jurors to be guided by the testimony as they heard it. The record shows that, in his statement to police, Riojas indicated that K.W. told him that appellant had Agrabbed her on her ass.@

Appellant next complains of the following argument made by the prosecutor: AWhat does this tell you? What does this evidence tell you also about credibility and about the propensity of [appellant] with regard to young girls?@ Appellant objected that the comment was outside the record and Away improper on the issue of extraneous matters.@ The trial court overruled the objection, stating that it did not perceive the prosecutor=s argument Aas being in that direction.@ The prosecutor was apparently deducing appellant=s intent to sexually gratify himself from evidence that was introduced at trial regarding comments that appellant made to Couch, who was 16 years old, about her Anice ass@ and from K.W.=s testimony regarding what transpired on the night of the offense. Moreover, a similar argument was held to be a proper plea for law enforcement in Long v. State, 820 S.W.2d 888, 894-95 (Tex.App. - Houston [1st Dist.] 1991, pet=n ref=d).

Finally, appellant complains that the prosecutor was improperly commenting upon his right to remain silent and upon his failure to testify at trial. The prosecutor=s arguments were:

Let me talk to you just briefly about hard choices like [defense counsel] talked about. There are some hard choices that have been made here. There are some people who have courage and then there are people who have displayed cowardice.

* * *

Let=s look at courage versus cowardice. [K.W.] came and testified in the light of day in the bright lights of the Courtroom, subject to cross examination....[K.W.] had the courage to come and subject herself to this, to subject herself and be accused of making up a story. She had the courage to come and tell you. [Appellant] performed his deed in the dark of the night when nobody else was looking.

In response to appellant=s objection, the prosecutor emphasized that she was talking about what happened at the cemetery. The trial court overruled appellant=s objections. The prosecutor=s comments, when viewed from the jury's standpoint, were not manifestly intended or of such a character that the jury would necessarily and naturally take them as a comment on appellant=s failure to testify. See Banks v. State, 643 S.W.2d 129, 134 (Tex.Cr.App.1982), cert. den=d, 464 U.S. 904 (1983); see also TEX. CODE CRIM. PRO. ANN. art. 38.08 (Vernon 1979). Appellant=s fourth point of error is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

April 18, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

McCall, J., and Dickenson, S.J.[1]

[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.