TIMOTHY HUTSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 8, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00033-CR
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TIMOTHY HUTSON, Appellant
V.
 
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-72429-W
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MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
        Timothy Hutson appeals his conviction for aggravated sexual assault of a child under fourteen years of age. After the jury found appellant guilty, the trial court sentenced appellant to fifteen years' imprisonment and a $2000 fine. Appellant brings six points of error contending the evidence is factually insufficient, the trial court erred in admitting certain testimony and overruling appellant's hearsay objections, and the jury charge contained errors that caused appellant egregious harm. We affirm the trial court's judgment.
SUFFICIENCY OF THE EVIDENCE
        In his first point of error, appellant contends the evidence is factually insufficient to prove the element of penetration of the complainant's sexual organ. In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and ask whether the evidence demonstrates the proof of guilt is so weak or the conflicting evidence is so strong as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We set aside a verdict only when, based on some objective basis in the record, we are able to say the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We are permitted to substitute our judgment for the factfinder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We must give almost complete deference to the factfinder's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child younger than fourteen years of age by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2009). In this case, the indictment alleged that appellant penetrated the complainant's female sexual organ with his finger. The female sexual organ is penetrated if there is any contact more intrusive than contact with the external portion of the vaginal lips; that is, contact with a portion of the female sexual organ “not usually exposed to view, even in nakedness.” Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
        Appellant was the complainant's stepfather and was the father of the complainant's younger sister. Appellant and the complainant's mother began living together when the complainant was two years old. Four years later, they separated. However, appellant and the complainant's mother remained friends, and appellant periodically lived with them.         The complainant testified that when she was thirteen years old and appellant was living with her family, she was asleep when she was awakened by someone touching her on the inside of her vaginal lips. The complainant testified she could not see who was touching her. Appellant concedes the evidence is legally sufficient to prove penetration based on the complainant's testimony that she was touched inside her vaginal lips. However, appellant argues the evidence is factually insufficient because (1) the evidence did not prove the identity of the assailant and (2) the complainant lacked credibility.
        On the issue of the identity of the assailant, the complainant testified she was sleeping in a room with appellant and her younger brother and sister. The only other person in the apartment was her mother. When she awoke from being touched, she could see her brother and sister; this left only appellant and the complainant's mother, and nothing in the evidence shows the complainant's mother was involved in or even aware of the assault. The complainant also testified to numerous previous incidents where she would awaken to find appellant rubbing his penis on her thigh. The record contains no evidence that anyone other than appellant committed the charged offense. We conclude the evidence is factually sufficient for the jury to find that appellant was the assailant.
        Appellant also argues the evidence is factually insufficient because the complainant lacked credibility. Appellant points to numerous times the complainant told various counselors and investigators that no assault occurred, the evidence of the complainant's history of lying and stealing, and the contradictions in her evidence in this trial and a previous trial of this incident that ended in a mistrial due to a deadlocked jury.
        The evidence showed that before the assault, the complainant received counseling following the death of her grandmother with whom she was close. One of the complainant's goals in the counseling was to overcome her problems with lying and stealing. The complainant testified that after the charged assault, she told her friend, A.W., what had happened and asked her not to tell anyone. A.W., however, told her mother who then told the complainant's mother. The complainant's mother confronted appellant about the accusation in front of the complainant, and appellant denied it. The complainant's mother testified that appellant said he may have been rubbing the complainant's back and that she “had a mixed thought about it.” The complainant's mother did not believe the complainant and punished her for making the accusation. After not being believed by her mother, the complainant developed anger issues and, six months later, was arrested for stealing. The complainant spent four months in the juvenile detention center. After the complainant's mother did not believe her, the complainant was afraid to discuss the incident with anyone else, and she repeatedly denied to investigators and counselors that she was sexually assaulted by appellant. When her mother visited her, the complainant, at her mother's urging, told her in detail about appellant's history of sexual conduct with her. The complainant's mother believed her and called the police. The complainant then was willing to discuss the issue with the investigators. However, when the complainant did not want to discuss it, she would tell the investigators and counselors that nothing happened.
        Andrea Schultz, the clinical supervisor for the Dallas Children's Advocacy Center testified that when a sexually abused child tells about the abuse but is not believed, it is not unusual for the child not to tell anyone else about the abuse. She also testified that it is not unusual for a child in that situation to act out and to have anger issues.
        Appellant also argues that the complainant's contradictory testimony in the trials of this case demonstrated her lack of credibility. Appellant attempted to impeach the complainant with her testimony from a trial on this incident five months previously, where she stated appellant touched the outside of her sexual organ. The prosecutor then introduced the complainant's testimony from the previous trial clarifying what she meant by “outside the lips,” and the prosecutor showed the complainant answered “around the inside of the lips, but not inside my vagina.” This testimony from the previous trial shows the complainant testified to penetration, and the jury in this case could conclude that her testimony at the two trials was not conflicting.
        After reviewing the entire record and giving deference to the jury's evaluation of the witnesses' credibility, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule his first point of error.
PRIOR CONSISTENT STATEMENT
        In his second point of error, appellant contends the trial court erred in admitting a prior consistent statement of the complainant, a written statement she provided the police. The complainant's statement was admitted for all purposes in a redacted form and reads, as redacted:
 
When I was 10 going on 11 yrs old and my stepfather has put his fingers inside of me, and comed on me more than one time, and when we moved from the apartment from where we moved from he did it there too. So after all that my mom found out by my best friends mom and my mother didn't believe me. So now that she sees that it is the truth she believes me. So now it has been very terrifying to me cause, . . . When I said that he put his fingers in me I mean he put his fingers in my vagina.
 
(Spelling and punctuation in original; ellipsis indicates redaction.).
        The trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007). The trial court abuses its discretion only when the decision lies “outside the zone of reasonable disagreement.” Id. (quoting Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005)). We view the evidence in the light most favorable to the trial court's ruling admitting the statement. Klein v. State, 273 S.W.3d 297, 304 (Tex. Crim. App. 2008).
        A prior consistent statement is “not hearsay” under rule of evidence 801(e)(1)(B) if:
 
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
 
Tex. R. Evid. 801(e)(1)(B). In this case, the complainant was the declarant, she testified at the trial, and she was available for cross-examination concerning the statement. Thus the issue is whether the statement was consistent with the complainant's testimony and whether defense counsel's cross-examination of complainant raised an express or implied allegation of recent fabrication.
        Appellant asserts the statement was inconsistent with her testimony because the statement said “he put his fingers in my vagina,” and the complainant testified that appellant's fingers did not enter her vaginal canal. The complainant testified that appellant's finger was inside her vaginal lips. Deferring to the trial court's discretion in evaluating the evidence, we conclude the trial court's determination that the statement and the complainant's testimony were consistent was not an abuse of discretion.
        Appellant also asserts the statement was inadmissible because there was no cross-examination accusing her of recent fabrication. As rule 801(e)(1)(B) makes clear, the charge of recent fabrication may be either express or implied. Id. In Hammons v. State, 239 S.W.3d 798, (Tex. Crim. App. 2007), the court of criminal appeals set out the standard for appellate review of this issue:
 
a reviewing court, in assessing whether the cross-examination of a witness makes an implied charge of recent fabrication or improper motive, should focus on the “purpose of the impeaching party, the surrounding circumstances, and the interpretation put on them by the [trial] court.” Courts may also consider clues from the voir dire, opening statements, and closing arguments. From the totality of the questioning, giving deference to the trial judge's assessment of tone, tenor, and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive? If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose.
 
Id. at 808-09 (footnotes omitted) (quoting Mueller & Kirkpatrick, Federal Evidence § 406 at 187); see also Klein, 273 S.W.3d at 314 n.21 (Hammons makes clear that trial court “is uniquely positioned to make the determination of whether a defendant's cross-examination makes the necessary accusation”).
        In this case, appellant's cross-examination of the complainant focused on her counseling and punishment for lying, her repeated denials to counselors and investigators that she had been sexually assaulted, and what appellant asserted were inconsistent statements in the earlier trial that appellant had not assaulted her. Appellant also questioned the other witnesses about the complainant's lying. In his opening statement, appellant's counsel stated the complainant “has had a chronic, severe problem of lying.” In his argument to the jury, appellant's counsel stated the complainant “had a habitual, a pathological problem with lying.” After “giving deference to the trial judge's assessment of tone, tenor, and demeanor,” we conclude the trial court could determine that appellant's counsel was “mounting a charge of recent fabrication.” See Hammons, 239 S.W.3d at 809.
        The trial court did not abuse its discretion in admitting the complainant's written statement. We overrule appellant's second point of error.
        In his third and fourth points of error, appellant contends the trial court erred in admitting the testimony of A.W. and her mother that the complainant told them about the assault. A.W. testified the complainant told her “[t]hat her daddy [appellant] was feeling on her while she was asleep.” A.W.'s mother testified the complainant told her “[t]hat she was being touched by Mr. Hutson.” Appellant objected to their being hearsay. The prosecutor stated that A.W.'s testimony of the complainant's statement was offered as a prior consistent statement. The prosecutor did not explain the purpose of A.W.'s mother's testimony. The trial court overruled the objections. Appellant argues that A.W.'s testimony of the complainant's prior consistent statement was not admissible because appellant had not mounted a charge of recent fabrication. Appellant argues A.W.'s mother's testimony of the complainant's statement to her was not excepted from the exclusion of hearsay because it did not meet the statutory requirements for an outcry witness. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Appellant does not discuss whether A.W.'s mother's testimony was admissible as a prior consistent statement. The complainant testified and was subject to cross-examination about the statements, the testimony of the complainant's statements was consistent with the complainant's testimony, and the trial court could conclude the State offered the statements to rebut appellant's implied charge of recent fabrication. We conclude the trial court did not abuse its discretion in admitting as prior consistent statements both A.W.'s and her mother's testimony of what the complainant told them about the offense. We overrule appellant's third and fourth issues.
JURY CHARGE
        In his fifth issue, appellant contends the trial court erred by failing to limit the conduct elements in the jury charge. In particular, he argues that aggravated sexual assault of a child is a nature-of-conduct offense, and the trial court should have limited the definitions of intentionally and knowingly accordingly.
        Three “conduct elements” can be involved in an offense: (1) nature of the conduct, (2) result of the conduct, and (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). A particular offense may contain one or more of these conduct elements. Id. When an offense is either a result-oriented or nature-of-the-conduct offense, the court should limit the statutory definitions of knowingly and intentionally to the culpable mental state required. Murray v. State, 804 S.W.2d 279, 281 (Tex. App.-Fort Worth 1991, pet. ref'd); Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.-Corpus Christi 1989, no pet.).
        When an offense, such as aggravated sexual assault, is not clearly a result-oriented or a nature-of-the-conduct type offense, it is not error for the trial court to submit both in its definitions of knowingly and intentionally. Saldivar, 783 S.W.2d at 267 (citing Bosier v. State, 771 S.W.2d 221, 225 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd)). Submitting the full definitions of knowingly and intentionally allows the jury to consider both the nature of an assailant's conduct as well as the result of his conduct. Id. We conclude that until the Texas Court of Criminal Appeals classifies aggravated sexual assault as either a result oriented crime or nature of the conduct offense, it is not error for the trial court to submit the complete definition of intentionally and knowingly.
        Even if we assumed the charge was erroneous, we conclude appellant was not egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). In his brief, to show egregious harm, appellant states merely that the jury was confused. He does not present any explanation, argument, or analysis suggesting how the jury could have been confused or misled by the charge given in this case. Looking at the charge as a whole and after reviewing the record, we fail to see how the jury could have been confused.
        Under the application paragraph, the jury had to find, beyond a reasonable doubt, that appellant did “knowingly or intentionally cause the penetration of the female sexual organ of [the complainant]” by his finger, before it could return a guilty verdict. The charge required the jury to find appellant engaged in the conduct with the requisite intent. Moreover, intent was not an issue at trial; rather, appellant's defense was the complainant was lying and that no incident occurred. We overrule appellant's fifth point of error.
        In his sixth point of error, appellant contends the trial court erred in defining reasonable doubt in the jury charge. The trial court's charge instructed the jury, “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all 'reasonable doubt' concerning the defendant's guilt.” According to appellant, this instruction defines “reasonable doubt” in violation of the court of criminal appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). We have previously addressed and rejected this precise argument. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2002, pet. ref'd). We decline appellant's invitation to decide the issue differently in this case. We overrule appellant's sixth point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
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Tex. R. App. P. 47
090033F.U05