Donald Marcel Spencer v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-92-012-CR

DONALD MARCEL SPENCER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 24,357

O P I N I O N

Donald Marcel Spencer was convicted by a jury of aggravated sexual assault. See Tex. Penal Code Ann. 22.021 (Vernon 1989). The jury found "true" to two enhancement paragraphs and assessed punishment at life in prison. Spencer's sole point of error is that the evidence is insufficient to sustain the conviction.

Spencer was indicted for the aggravated sexual assault of his eleven-year-old stepdaughter. The indictment alleged that he committed the assault "by causing his sexual organ to penetrate the female sexual organ" of the victim. The victim, A.H., testified that around Thanksgiving of 1990, Spencer "stuck his private part in me." Dr. Grady Shaw, an emergency room physician, testified that he examined the girl in January 1991. He testified in pertinent part:

Q: What did you find from your examination of [A.H.]?

A: I was asked to examine [A.H.] in relation to an allegation of possible sexual abuse, and I performed a complete physical examination on her after interviewing her. Her physical examination was, essentially, normal with specific reference to the possibility of sexual abuse. This was a child who was near puberty but had not actually achieved puberty. She had a mild vaginal discharge, which was not abnormal. The introitus or entrance to her vagina was larger than one would normally expect in a child her age who had never had intercourse. There was no hymen or maidenhead present. And there was, at that time, no evidence of trauma of tears or lacerations or bleeding.

Q: Based on your examination on January 8th, 1991, of [A.H.], could you state with medical probability whether or not that examination would be consistent with her being sexually assaulted by an adult male on or about November 23rd of 1990?

A: Yes that's the examination was consistent with that possibility.

Q: Did you find anything in your physical examination or your interview I assume you also interviewed her

A: Yes.

Q: [A.H.] that would be inconsistent with her allegations that her stepfather, Donald Spencer, on or about November 23, 1990, caused his sexual organ to penetrate her female sexual organ?

A: No, there was nothing on her exam or interview that was inconsistent with that allegation.

Spencer asserts that the evidence is insufficient to support the conviction because the State failed to prove an essential element of the offense as alleged in the indictment that he caused his sexual organ "to penetrate the female sexual organ" of the victim. He asserts that the victim's testimony that he "stuck his private part in me" does not sufficiently specify the female sexual organ.

In reviewing the sufficiency of the evidence to establish whether the State has proved an element of the offense, we must look at all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have believed the element was established beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979). We are not to sit as a thirteenth juror reweighing the evidence or deciding whether we believe the evidence established the element in contention beyond a reasonable doubt; rather, we are to ask ourselves whether the trier of fact, acting rationally, could have found the evidence sufficient to establish the element beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

The courts recognize that child victims cannot testify with the same clarity and ability as mature adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Penetration may be proven by circumstantial evidence. Id. at 133; Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972). There is no requirement that the victim be able to testify as to penetration. Villalon, 791 S.W.2d at 133; Nilsson, 477 S.W.2d at 596.

The victim testified that Spencer "stuck his private part in me." Dr. Shaw testified that the entrance to the child's vagina was larger than usual in a child her age who had not had intercourse, that no hymen was present, and that nothing in the findings of his physical examination was inconsistent with the allegations that Spencer had caused his sexual organ to penetrate her sexual organ. Spencer denied that he had assaulted the girl. He testified that she had had disciplinary problems at school and that he had chastised her. Don Barron, an officer with the Navarro County Sheriff's Department, testified that he investigated the alleged sexual assault, that Spencer fled to Alabama, and that he was finally apprehended in Colorado eight months later using an alias. Barron also testified that, in his discussions with him, Spencer had never mentioned that A.H. had made up the allegations because of any disciplinary action.

Evidence of flight is admissible as a circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). The jury, as the trier of facts, is the exclusive judge of the credibility of the witnesses and the weight to be given the evidence. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). After reviewing all the evidence before us in the light most favorable to the verdict, we find that a rational trier of fact could have found the element of penetration beyond a reasonable doubt. We overrule the point.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 12, 1992

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