Rodney Allen Mercer v. The State of Texas--Appeal from 266th District Court of Erath County

Opinion filed January 25, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00292-CR

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   RODNEY ALLEN MERCER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR 12202

O P I N I O N

Rodney Allen Mercer appeals his conviction by a jury of the offense of aggravated sexual assault of a child. The jury assessed appellant=s punishment at confinement for life and a $10,000 fine. In a single issue, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.

The Indictment

The indictment alleged that appellant, on or about December 15, 2004, Aintentionally or knowingly cause[d] the penetration of the sexual organ of [the complainant], a female child who was then and there younger than 14 years of age and not the spouse of the [appellant], by [appellant=s] finger.@ The complainantwas eleven years old at the time of the conduct charged in the indictment. Standard of Review

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. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979). The jury may accept one version of the facts and reject another. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

The Evidence at Trial

The record shows that the complainant is the daughter of Michelle Collins Mercer. Appellant began dating Michelle in 2003, and they were married in October 2004. The complainant lived with appellant and her mother at the time of the incident alleged in the indictment. In January 2005, Michelle left appellant for another man. At that time, Michelle and the complainant moved out of appellant=s residence.

The complainant was twelve years old at the time of trial. She testified that appellant touched her private parts. During her testimony, she identified her sexual organ as her ATT.@ The complainant said that appellant put his finger inside her ATT@ many times. She said that it hurt when appellant put his finger inside of her. The complainant said that she and appellant were in her bedroom when appellant put his finger inside of her. She also said that appellant touched her Aboobs.@ The complainant testified that she told Diana Fernandez, her aunt, that appellant had done something bad to her.

Erath County Deputy Sheriff Jack Carr investigated the allegations of sexual abuse against appellant. Deputy Carr testified that he gathered information and took statements in an attempt to determine whether there was any truth to the allegations. He said that Carrie Paschal of the Tarrant County District Attorney=s Office specialized in cases involving allegations of sexual abuse to children. Deputy Carr made arrangements for Paschal to interview the complainant. Deputy Carr said that Paschal conducted a video interview of the complainant on January 19, 2005. Deputy Carr referred to the videotape as an outcry statement from the complainant.

Deputy Carr interviewed appellant on February 24, 2005. In discussing his family life with Michelle and the complainant, appellant told Deputy Carr that all three of them practiced nudity. Deputy Carr testified that, during the interview, appellant talked about sexual enlightenment and sexual training and education of the complainant.

Deputy Carr testified that, based on information received from Mendy Dawn Beyer, law enforcement personnel obtained a search warrant to seize a computer and associated equipment that had been used by appellant. Beyer testified that she had worked on the computer with Michelle around the first of 2005. She said that, at Michelle=s request, she had transferred photos from a private folder on the computer to a disk. Beyer said that she saw one of the photos as she was transferring them. She said that the picture depicted Michelle and the complainant naked and holding up their boobs. Deputy Carr and the other officers executed the search warrant on February 25, 2005. They seized the computer and related equipment. After the search, Beyer informed Deputy Carr that a CD and a film strip had been hidden from the officers during the search. On March 7, 2005, Beyer brought the CD and the film strip to Deputy Carr. The officers sent many of the seized items to the Federal Bureau of Investigation laboratory in Dallas for evaluation. The FBI lab retrieved a number of images and writings from the submitted items. The State introduced a number of the images and writings into evidence as exhibits. The exhibits included pictures of appellant, Michelle, and the complainant in the nude.

Deputy Carr testified that appellant was arrested for aggravated sexual assault of the complainant, on April 9, 2005. David Stone shared a cell with appellant in the Erath County Jail after appellant=s arrest for the offense. Stone testified that appellant talked with him about the offense. Appellant talked about what he had done with the complainant. Stone said that appellant admitted that he had taken a shower with the complainant, that he had washed her private area, that he had washed her with a washrag, and that he had put his finger inside of her. Stone also said that appellant asked whether it would be penetration Aif he=d only barely put his finger inside of her.@

Beyer testified that she had known appellant and Michelle for about ten years. Beyer said that, on one of her visits to appellant=s residence, she walked into the house and saw appellant, Michelle, and the complainant watching a pornographic movie together. Appellant told Beyer that they were watching the movie for the sexual education of the complainant. Beyer also testified that appellant told her that he had discussed masturbation with the complainant, that he had discussed sexual education with the complainant, and that he had discussed the sexual arousal of a man with the complainant.

Bessie Mae Nelson, the complainant=s grandmother, testified that, in late December 2004 or early January 2005, she received a phone call from appellant. She said that, during the phone call, appellant was distressed and screaming and told her that Michelle and the complainant had left him. Later that day, appellant came to see Nelson. Nelson testified that appellant told her that Michelle was going to try to get him in trouble. According to Nelson, appellant told her that he and Michelle had taken showers with the complainant and that Michelle was upset with him and had left him because he had gotten erections in the complainant=s presence.

Appellant testified that he never penetrated the complainant in any way. He said that he practiced nudism and that clothing was optional in the household. He said that he, Michelle, and the complainant had taken showers together twenty or thirty times. Appellant testified that the complainant was mistaken as to what happened or was Abeing led@ to make the allegations against him.

Analysis

Applying the above standards of review, the evidence was both legally and factually sufficient to support appellant=s conviction for aggravated sexual assault of a child. The complainant testified that appellant had penetrated her sexual organ with his finger many times. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.C Dallas 2002, pet. ref=d); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.C Dallas 1998, no pet.); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.CSan Antonio 1994, pet. ref=d). Additionally, Stone=s testimony corroborated the testimony of the complainant. Stone said that appellant admitted putting his finger inside of the complainant. The testimony of the complainant and Stone supports a finding that appellant penetrated the complainant=s sexual organ with his finger. Appellant testified that he never penetrated the complainant in any way. However, the jury, as the sole judge of the credibility of the witnesses and the weight to be given to their testimony, was entitled to accept the complainant=s testimony and to reject appellant=s testimony. Articles 36.13, 38.04; Penagraph, 623 S.W.2d at 343. We overrule appellant=s issue.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

January 25, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.