Galen Dean Williams v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-098-CR

GALEN DEAN WILLIAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 29223

O P I N I O N

A jury convicted Williams of one count of indecency with a child and three counts of aggravated sexual assault. See Tex. Penal Code. Ann. 21.11, 22.021 (Vernon 1989). The jury assessed punishment at twenty-five years imprisonment on the indecency with a child count, seventy-five years imprisonment on each of the aggravated sexual assault counts, and a $1000 fine for each offense. Williams challenges the sufficiency of the evidence to support the convictions in point one. In point two, he asserts that the State failed to prove that the outcry witness was the first adult that the victim told of the incident. Finally, he challenges the constitutionality of the parole law instruction. We affirm.

In resolving the sufficiency-of-the-evidence issue, we view all 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 offense beyond a reasonable doubt. See Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The jury is the exclusive judge of the credibility of the witnesses and is free to accept or reject any part of a witness' testimony. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989).

Williams argues that the evidence fails to exclude the possibility that another man assaulted the victim. The child testified unequivocally that Williams was her assailant. Williams denied committing the offense. The child's testimony is sufficient to support the jury's conclusion that Williams assaulted her. See id. Point one is overruled.

In point two, Williams claims the State failed to prove that the outcry witness was the first adult to whom the victim made a "statement about the offense." See Tex. Code Crim. Proc. Ann. art. 38.072, 2(a)(2) (Vernon Supp. 1994). Two days after the offense, the victim approached a neighbor and requested that she be taken to visit a former baby-sitter. The baby-sitter testified as the outcry witness. The victim testified that this outcry witness was the first adult she told of the offense. The baby-sitter testified that the neighbor had stated that the victim would not tell the neighbor what was wrong. The court found that the elements of the statutory outcry-witness exception to the hearsay rule were satisfied and admitted the witness' testimony.

The trial court has broad discretion in determining the admissibility of this evidence. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). The court's ruling will be reversed only if a "clear abuse of that discretion is established by the record." Id. There was no such abuse of discretion in this case. Point two is overruled.

The trial court instructed the jury regarding parole, using the language set out by the legislature in the Code of Criminal Procedure. See Tex. Code. Crim. Proc. Ann. art. 37.07, 4(a) (Vernon Supp. 1994). Williams contends that his due process rights were violated by this instruction, relying on the Fourteenth Amendment of the United States Constitution. The Court of Criminal Appeals has held that the "parole instruction mandated in Article 37.07, Section 4(a) does not violate federal due process." See Muhammad v. State, 830 S.W.2d 953, 956 (Tex. Crim. App. 1992). Point three is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 19, 1994

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