Christopher Drew McIllwain v. The State of Texas--Appeal from 366th District Court of Collin County

IN THE

TENTH COURT OF APPEALS

No. 10-97-047-CR

CHRISTOPHER DREW McILLWAIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 366th District Court

Collin County, Texas

Trial Court # 366-80127-96

O P I N I O N

This is an appeal by Appellant McIllwain from his conviction for aggravated sexual assault on a child younger than 14 years of age (enhanced by two prior felony convictions) for which he was sentenced to 50 years in the Texas Department of Criminal Justice-Institutional Division.

Appellant was convicted by a jury for aggravated sexual assault on his stepdaughter, age 11. The victim D.D. was visiting with her grandmother in San Antonio in June 1995, when she made "outcry" that her stepfather had sex with her in their home in Plano. The grandmother contacted the Child Advocacy Center which investigated. Dr. Murnard examined D.D. and testified that D.D.'s vagina had been penetrated on more than one occasion. Appellant left Texas for Tennessee when he learned of the accusation. He was arrested, brought back to Texas, indicted for aggravated sexual assault, pled "not guilty," and was found guilty by a jury. He elected to have the judge assess punishment, and was sentenced by the judge to 50 years in prison.

Appellant appeals on three points of error.

Point 1: "The State failed to prove by sufficient evidence, beyond a reasonable doubt, that the appellant intentionally and knowingly caused the penetration of the vagina of a child."

Specifically, Appellant contends the evidence is legally insufficient to prove that he penetrated the vagina of the victim.

The standard of review for challenges to the sufficiency of the evidence is whether, when viewed in the light most favorable to the verdict, any rational trier of fact could find from the evidence beyond a reasonable doubt, the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307 (1979); Dunn v. State, 819 S.W.2d 510, 513 (Tex. Crim. App. 1991). The appellate court will not disturb a factfinder's decision unless it is irrational or supported by only a "mere modicum" of evidence. Marino v. State, 755 S.W.2d 866, 869 (Tex. Crim. App. 1988). Penetration within the meaning of Penal Code 22.02, occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips. Karnes v. State, 873 S.W.2d 92, 96 (Tex. App. Dallas 1994, no pet.); Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Penetration of the vaginal canal is not required to prove penetration. Touching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute. Vernon, 841 S.W.2d at 409.

The victim testified that Appellant "the first time" tried to stick his private in her private. This became frequent, three to four times a week, and occurred in the apartment in Plano. She testified Appellant would tell her to "take off her clothes"; that having sex was a "natural-born behavior"; that her mom's hole was bigger than hers, but the more they had sex, the bigger hers would become." This went on for three or four months. She would be rewarded with donuts, reinstatement of privileges, and money. She further testified that Appellant put his finger into her private part; and that she had not had sex with anyone except Appellant.

Dr. Murnard testified she has a B.A. and M.A. in nursing, a Ph.D.; that she is a Certified Pediatrics Nurse Practitioner; and is allowed to make diagnoses and treat children. She performed a physical examination of the victim. She testified the victim had a gaping hymen; that her examination conclusion of the victim was consistent with a history of vaginal penetration; and that the penetration was most likely due to penile penetration.

We think the jury could find beyond a reasonable doubt that Appellant had penetrated the vagina of the victim.

Point 1 is overruled.

Point 2: "The evidence was insufficient to support Appellant's conviction for aggravated sexual assault of a child based on the lack of credibility of the victim."

Specifically, Appellant asserts that he presented several witnesses, including the victim's mother, who testified that the victim's reputation for truthfulness was bad, and for which reason the jury could not have found the essential elements of the offense beyond a reasonable doubt.

The factfinder is the sole judge of the witnesses' credibility and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The factfinder may reject all or part of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

In this case the jury heard the victim testify, and heard Nurse Murnard testify. They also heard the witnesses who testified that the victim's reputation for truthfulness was bad. Further, the jury heard three rebuttal witnesses called by the State who testified as to the victim's mother's truthfulness.

The jury, as trier of facts, the credibility of the witnesses, and the weight to be given their testimony, was free to accept or reject the testimony of any witness. Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1982). Thus the jury was free to disbelieve Appellant's witnesses and to believe the State's witnesses.

Point 2 is overruled.

Point 3: "The State failed to prove by a preponderance of the evidence that the offense occurred in Collin County, Texas."

The victim testified she lived in the Steeplechase Apartments in Plano; that the incidents occurred in the apartment when her mother was working; that she attends Rasor Elementary School in Plano; and that Plano is in Texas.

Officer Wilson testified that he was a police officer of the City of Plano; witness Bachurn testified that Rasor Elementary School is in Plano; that Plano is in Collin County, Texas; and that she knew that the victim was living in Collin County at an apartment complex.

The State did prove by a preponderance of the evidence that Plano was where the offense occurred and that Plano was in Collin County, Texas.

Point 3 is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 26, 1997

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