Crosby, Christopher v. The State of Texas--Appeal from 228th District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-01-00850-CR

01-01-00851-CR

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CHRISTOPHER CROSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause Nos. 870152, 870151

O P I N I O N

This appeal derives from two convictions in two separate causes in the trial court (Trial Cause Nos. 870152 and 870151; and Appellate Cause Nos. 01-01-00850-CR and 01-01-00851-CR, respectively). Because both appeals raise substantially the same issues, we handle them together on appeal.

In two causes, appellant was charged with aggravated sexual assault against his step-sister's daughter. A jury found appellant guilty in both causes and sentenced him to life imprisonment for aggravated sexual assault by vaginal penetration and for aggravated sexual assault by anal contact. We affirm.

Background

On January 7, 2001, the complainant, who was six years old, told her mother, Clynthia Shelvin, that her uncle (appellant) had sexually abused her. Appellant is Ms. Shelvin's step-brother and lived with the complainant and Ms. Shelvin. Appellant had moved out approximately two weeks before the complainant revealed that he had sexually abused her.

Ms. Shelvin testified about changes in the complainant's behavior and physical appearance. Shortly before January 7, 2001, the complainant's grades began to slip and she fought at school. Ms. Shelvin would usually run a bath, and the complainant and her sister would put their toys in the tub. Ms. Shelvin would monitor the girls while the complainant bathed herself and her sister. The complainant became defensive and refused to do this activity. On January 7, 2001, the complainant shut the bathroom door. Ms. Shelvin entered and observed sores around the complainant's vagina, inside her vagina, on her thighs, on and in between her buttocks, and on the back of her legs. She noticed an abnormal discharge in the complainant's underwear. She also noticed that complainant was scratching her vaginal area and bottom.

Ms. Shelvin asked the complainant if anyone had touched her. The complainant appeared nervous and began to cry; eventually she told her mother that appellant touched her. The complainant said appellant touched her with his hands and penis on her buttocks and "private." The complainant testified that this touching occurred more than once while her parents were at work and while appellant babysat the complainant and her sister.

In cause number 01-01-00850-CR, appellant raises two points of error. In cause number 01-01-00851-CR, appellant raises four points of error. In both causes, appellant contends in his first two points of error that the evidence was legally and factually insufficient to support his conviction for aggravated sexual assault by vaginal penetration. In cause number 01-01-00851-CR, appellant complains in two additional points of error that the evidence was legally and factually insufficient to support appellant's conviction for aggravated sexual assault because the State failed to show that the complainant's anus came in contact with appellant's sexual organ.

Legal Sufficiency

In his first points of error in both causes, appellant challenges the legal sufficiency of the evidence. Specifically, appellant argues that the complainant's testimony incriminating appellant was not corroborated by any evidence linking the appellant to the alleged offenses. In his third point of error in Cause Number 01-01-00851-CR, appellant challenges the legal sufficiency of the evidence because the State did not show that appellant had contact with the complainant's anus, as alleged in the indictment.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine if 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, 319, 99 S. Ct. 2781, 2789 (1979).

A person commits aggravated sexual assault:

(1) if the person:

(B) intentionally or knowingly:

(i) causes the penetration of the anus or female sexual organ of a child by any means;

(iv) causes the anus of a child to contact the anus or sexual organ of another person, including the actor;

(2) if:

(B) the victim is younger than 14 years of age.

Tex. Pen. Code Ann. 22.021(a) (Vernon Supp. 2002).

A conviction for a sexual offense against a child may be supported by the uncorroborated testimony of the minor victim. Scoggan v. State, 799 S.W.2d 679, 683 (Tex. Crim. App. 1990). Article 38.07 of the Texas Code of Criminal Procedure clearly exempts sexual assault victims 14 years of age and younger from the normal outcry or corroboration requirements. Tex. Code Crim. Proc. art. 38.07 (Vernon Supp. 2002); see Scoggan, 799 S.W.2d at 683.

At trial, the complainant testified about the incidents with appellant in great detail. She indicated that the genitals on male and female anatomically correct dolls as the dolls' "private[s]" and specifically identified appellant as the person who sexually assaulted her. The complainant testified that appellant's "private" touched her "private," that he put his finger inside her "private," that he was on top of her, spread her legs, and touched her bottom with his "private," and that this hurt her. The complainant also testified that appellant's "private" was hard and moving. She further testified that she had "little dots" [sores] on her private and behind.

Ms. Shelvin testified that she observed sores in and around the complainant's vagina, on her buttocks, and "between the cheeks of her behind." Dr. Deborah Hsu, a pediatric emergency medicine doctor at Texas Children's Hospital, testified that full genital and general exams were performed on the complainant. Dr. Hsu observed a dry, red, scaly rash on the complainant's suprapubic region, rectal region, and buttocks. Although the lab was unable to grow cultures out of it, Dr. Hsu testified that the rash looked like herpes. Dr. Hsu prescribed acyclovir, the drug used to treat herpes. Dr. Hsu further testified that a "notching" consistent with a healing cut within the complainant's hymenal ring was revealed in the genital exam. Dr. Christina Valentine, who also examined the complainant, came to the same conclusions as Dr. Hsu.

Viewing this evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant committed aggravated sexual assault with a child by vaginal penetration and by anal contact. Therefore, the evidence is legally sufficient to support appellant's conviction for aggravated sexual assault by vaginal penetration and his conviction for aggravated sexual assault by anal contact.

We overrule appellant's first point of error in 01-01-00850-CR and his first and third points of error in 01-01-00851-CR.

Factual Sufficiency

In his second points of error for both causes, appellant challenges the factual sufficiency of the evidence. Specifically, he argues that the complainant's testimony incriminating appellant was not corroborated by any evidence linking appellant to the alleged offenses. In his fourth point of error in Cause Number 01-01-00851-CR, appellant challenges the factual sufficiency of the evidence because the State failed to show the appellant had contact with the complainant's anus, as alleged in the indictment.

Under the factual sufficiency standard, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In addition to the evidence that we considered under the legal sufficiency point of error, we now consider the rest of the evidence.

Appellant did not testify at trial. As already discussed in the legal sufficiency point, the complainant's testimony concerning appellant's behavior and the presence of the rash was supported by the medical testimony and Ms. Shelvin's testimony. Appellant did not controvert this evidence. The jury, as the sole judge of the credibility of the witnesses and the weight to be given to their testimony, may choose to accept or reject all or any part of the testimony. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Although the complainant was the only one to have witnessed the sexual assault, her testimony is sufficient. See Scoggin, 799 S.W.2d at 681.

After considering all the evidence, we conclude that the jury's verdict was not manifestly unjust or outweighed by contrary evidence. Accordingly, the evidence is factually sufficient to support appellant's conviction for aggravated sexual assault by vaginal penetration and his conviction for aggravated sexual assault by anal contact.

We overrule points of error two in both causes and point of error four in Cause Number 01-01-00851-CR.

Conclusion

We affirm the judgment of the trial court.

Adele Hedges

Justice

Panel consists of Justices Hedges, Keyes, and Evans. (1)

Do not publish. Tex. R. App. P. 47.4

1. The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.