Wayne Mark Popp v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00002-CR

Wayne Mark Popp,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2002-253-C

MEMORANDUM Opinion

Wayne Mark Popp was convicted of three counts of aggravated sexual assault. His victim was his girlfriend s eight year old daughter, A.W. Popp was sentenced to 40 years in prison on each count. The trial court stacked the sentences. Popp appeals his conviction as to Count 2 of the indictment. Because the evidence is both legally and factually sufficient to support the verdict as to Count 2, we affirm.

Count 2 charged Popp with causing the penetration of A.W. s anus with his finger. Popp argues on appeal that the evidence is both legally and factually insufficient to support the jury s finding of guilt. Specifically, Popp contends the State did not prove penetration of A.W. s anus. A.W. did not mention during her testimony the digital penetration of her anus. Her grandmother, Dorothy, provided the testimony about the incident.

Dorothy testified that A.W. had her read a specific entry in A.W. s diary. The entry noted that Popp had had sex with A.W. When asked by Dorothy to explain, A.W. stated to her grandmother that Popp stuck his finger in my booty. The following exchange then took place:

Q. Where did she say that he had used his fingers?

A. In the booty, that was the second part, and in the front, she said he licked her, and put the finger in both parts.

****

Q. But she said that he put his fingers in her booty?

A. Yes.

Popp argues that this testimony is both legally and factually insufficient because of how A.W. had previously explained what she meant by booty. Using the anatomically correct doll, A.W. was asked to explain what part of the body is the booty. She then circled the hole at the back of the doll. Continuing with the doll, the State asked A.W. for more details.

Q. What is that part of the body used for, that brown hole?

A. To do number two.

Q. To go to the bathroom out of?

A. Yes.

Q. And then you pushed it together, and said what?

A. The puffiness.

Q. The puffiness on either side of that hole, what do you call that?

A. Cheeks.

Q. These are the cheeks?

A. Yes.

Q. And where is the booty then?

A. The whole thing.

Q. The whole entire thing?

A. Yes.

Popp relies on a case from Texarkana to support his argument that there is no evidence of penetration without the aide of conjecture or speculation because A.W. describes the booty as the whole thing, not just the anus. See Sessums v. State, No. 06-02-00149-CR, 2003 Tex. App. LEXIS 5477 (Tex. App. Texarkana 2003)(not designated for publication), rev d and remanded, 2003 WL 22855433 (Tex. Crim. App. Nov. 26, 2003)(not designated for publication). However, the operative word in this case is in.

The child in Sessums simply said he had a sore bobo. Dorothy testified that A.W. said Popp stuck his finger in my booty. (Emphasis added). She also stated that A.W. told her Popp put his finger in both parts. One of the many definitions of the word in is a used as a function word to indicate inclusion, location, or position within limits[;] b: INTO. Webster s Collegiate Dictionary, 10th Ed., 585 (1993). The jury could have determined that Popp stuck his finger into A.W. s anus.

Thus, looking at all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential element, penetration, beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)(emphasis in original); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The evidence is legally sufficient to support the jury s verdict.

In arguing that the evidence is factually insufficient, Popp claims that the proof of guilt is so weak as to undermine the confidence in the jury s determination because, Popp argues, when describing the licking of her anus as being up inside the hole, A.W. was quick to clarify she did not mean inside the hole, but the area outside the hole. Thus, Popp argues, A.W. was capable of saying what she meant. Again, Popp focuses on A.W. s previous definition of booty. However, the operative word, again, is in. Thus, the verdict was not too weak to support a finding of penetration beyond a reasonable doubt.

Considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence is factually sufficient to support the verdict.

Popp s sole issue is overruled. The trial court s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 6, 2005

Do not publish

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