Wesley Earl Evans v. The State of Texas--Appeal from 351st District Court of Harris County

11th Court of Appeals

Eastland, Texas

Opinion

Wesley Earl Evans

Appellant

Vs. Nos. 11-02-00019-CR & 11-02-00020-CR -- Appeals from Harris County

State of Texas

Appellee

The jury convicted appellant of two charges of aggravated sexual assault of a child in a single criminal action and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 60 years for each conviction. Appellant brings five points of error on appeal.[1] We affirm.

Appellant attacks the legal sufficiency of the evidence supporting the convictions in his second point of error. Evidence is legally sufficient when, viewed in the light most favorable to the verdict, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged 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). Each conviction involves an allegation of sexual assault committed against the same female child. The record shows that the victim, the victim=s mother, and the victim=s two brothers resided with appellant during the period of time relevant to these proceedings in a house located on Boggess Street in Houston.[2] At various times, several of the victim=s maternal relatives also lived in the house on Boggess Street.

The victim testified that appellant sexually assaulted her numerous times while her mother was at work. She testified about a particular episode occurring at the house on Boggess Street wherein appellant took her from her bedroom to his bedroom. After removing her clothing and his clothing, appellant laid down on top of the victim and caused his male sexual organ to contact the female sexual organ of the victim. The victim testified that this conduct occurred on numerous occasions at the house on Boggess Street. The victim also testified about another specific episode occurring at another house owned by appellant referred to as Athe shack.@ The victim testified that appellant took her to Athe shack@ and sexually assaulted her on a table.

In addition to the victim=s testimony, several of her family members testified regarding the account of the assaults reported to them by the victim. The victim=s therapist testified that she did not detect any signs of fabrication with respect to the victim=s allegations against appellant. A pediatrician who examined the victim testified that the condition of the victim=s hymen was suggestive of penetrating trauma.

Appellant bases his legal insufficiency argument on the allegation that the victim=s testimony was not credible. Appellant presented evidence to the jury attacking the victim s credibility. He argued that the victim=s testimony was contrived based on disagreements that he had with the victim=s maternal relatives and the victim=s ill feelings towards him regarding a bicycle that he had taken away from her. As the fact finder, the jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony and could believe or disbelieve all or any part of the victim s testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981). Viewing the evidence in the light most favorable to the verdict, we find the evidence sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt. Appellant s second point of error is overruled.

In deciding whether the evidence is factually sufficient to support the conviction, we review all of the evidence in a neutral light favoring neither party to determine if the verdict is clearly wrong and manifestly unjust or against the great weight of the evidence. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). We review the fact finder s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra. Due deference must be given to the fact finder s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den d, 522 U.S. 832 (1997).

As outlined above, the evidence is not too weak to support the verdicts. The evidence appellant presented was not so overwhelming as to render the jury s verdicts clearly wrong and unjust. Appellant offered the testimony of a relative who testified that appellant resided with him during a portion of the time period in question. This testimony conflicted with the testimony of another witness called by appellant who testified that appellant resided at the house on Boggess Street during the same period of time. The testimony offered by appellant in support of acquittal rested largely upon the jury s determination of the witnesses= credibility. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, supra at 408. Appellant s third point of error is overruled.

Appellant s fourth point of error also attacks the legal sufficiency of the evidence supporting his convictions. He contends that the evidence is legally insufficient to establish that both offenses with which he was charged occurred in Texas. The indictments in each cause are identical except for the alleged date of the offenses. The indictment in Cause No. 11-02-00019-CR charged appellant with an offense that occurred on or about September 1, 1998. The indictment in Cause No. 11-02-00020-CR charged appellant with an offense that occurred on or about May 1, 1998.[3] Appellant bases his argument on the contention that the State failed to prove that the shack was located within the State of Texas. He does not attack the jurisdictional evidence regarding the assault occurring at the house on Boggess Street. Appellant argues that both convictions must be overturned because the evidence did not establish that both offenses occurred in the State of Texas.

We disagree with appellant s assessment of the jurisdictional evidence. The victim described two specific instances of sexual assault committed by appellant. One of these instances occurred at the house on Boggess Street while the other instance occurred at the shack. However, these are not the only episodes of sexual assault which were presented to the jury. At the conclusion of her description of the sexual assault which occurred at Boggess Street, the victim testified that this conduct occurred on numerous times at that location. Accordingly, neither of the convictions were necessarily dependent upon the episode of sexual assault occurring at the shack. The jury could have based its convictions in both cases upon two sexual assaults occurring at the house on Boggess Street.

Moreover, sufficient evidence was offered at trial to establish that the sexual assault which occurred at the shack occurred in the State of Texas. While no direct testimony was offered to show that the shack was located in Harris County, the testimony revealed that the house was located on Jewel Street in the Fifth Ward. Jurisdiction can be proven circumstantially. Vaughn v. State, 607 S.W.2d 914, 920 (Tex.Cr.App.1980). References to places known to be in Texas represent ample evidence on which the jury could base its verdict. See Hewitt v. State, 734 S.W.2d 745, 747 (Tex.App. B Fort Worth 1987, pet n ref d). The trial occurred in Harris County with Houston and Harris County law enforcement and child protective service officials testifying regarding their investigation of the matters alleged. Sufficient evidence was, therefore, offered to establish that the sexual assault which occurred at the shack occurred in Texas. Appellant s fourth point of error is overruled.

Appellant s fifth point of error in Cause No. 11-02-00019-CR seeks to overturn his conviction in that cause based on the same jurisdictional allegation he asserted in his fourth point of error. Appellant s fifth point of error is overruled on the same basis that we have overruled his fourth point of error.

Finally, appellant contends in his first point of error that the trial court erred in overruling his motion to sever the two causes. Chapter Three of the Texas Penal Code governs the consolidation, joinder, and severance of multiple offenses tried in a single criminal action. A defendant may seek a severance when two or more offenses have been consolidated or joined for trial in a single criminal action. TEX. PENAL CODE ANN. ' 3.04 (Vernon Supp. 2002). Since he was charged with two offenses of aggravated sexual assault of a child younger than 17 years of age, appellant did not possess the right to compel a severance. See TEX. PENAL CODE ANN. '' 3.03(b) & 3.04(c) (Vernon Supp. 2002). Instead, appellant was not entitled to obtain a severance unless the trial court determined that he or the State would be unfairly prejudiced by a joinder of the offenses. See Section 3.04(c).

Appellant presented his motion to sever after the voir dire process had been completed. Citing Thornton v. State, 986 S.W.2d 615 (Tex.Cr.App.1999), the State argues that appellant s motion to sever was untimely. We agree. The Court of Criminal Appeals held in Thornton that a motion to sever is a pleading of the defendant that must be raised pretrial. Thornton v. State, supra at 617. Appellant s motion to sever was not timely because it was not filed prior to trial. The court in Thornton stated that a motion to sever filed after the voir dire process commences is untimely. Moreover, the record does not demonstrate that the trial court erred in overruling the motion to sever. As noted previously, appellant was only entitled to a severance upon a showing of unfair prejudice. The primary reason for a defendant to sever offenses is to limit the presentation of evidence of the defendant s wrongdoing to one offense, rather than allowing presentation of evidence of multiple offenses. Thornton v. State, supra at 617. A severance of the two charges would not have limited the presentation of evidence of appellant s wrongdoing to one offense because TEX. CODE CRIM. PRO. ANN. art. 38.37 (Vernon Pamph. Supp. 2002) permits the admission of evidence of other acts committed by the defendant against a child victim in cases involving sexual assault. Appellant s first point of error is overruled.

The judgments of the trial court are affirmed.

PER CURIAM

August 29, 2002

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

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

Wright, J., and McCall, J.

[1]Appellant=s fifth point of error is limited to Cause No. 11-02-00019-CR.

[2]Appellant was the father of one of the victim=s brothers.

[3]The prosecutor informed the jury during closing argument that the dates set out in the indictments were selected at random. The Aon or about@ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex.Cr.App.1997).