Tirone Clemons v. The State of Texas--Appeal from 331st District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-255-CR
TIRONE CLEMONS,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 104,673, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

After finding appellant guilty of the offense of aggravated sexual assault of a child, Tex. Penal Code Ann. 22.021 (1989), the jury assessed punishment at fifty years' confinement. Appellant asserts two points of error. In his first point of error, appellant urges the evidence is insufficient to support his conviction in that the complaining witness's identification and the corroborative evidence are fundamentally dissimilar. In his remaining point of error, appellant contends that the introduction of an extraneous offense on the issue of identity constitutes reversible error. We overrule appellant's points of error and affirm the judgment of the trial court.

The victim, aged twelve at the time in question, testified that on April 25, 1990, she was walking to school with a girlfriend when a man spoke to them from a car and offered them a ride. When they refused, the man got out of his car and chased them. The victim related that he caught her and "drug me to his car." When she tried to get out of the car, "he grabbed me by the neck" and drove to a place where there were no houses. The assailant made her pull off her clothes. With the aid of a doll, the victim identified the places where boys and girls go to the bathroom as their privates. She related that after he attempted to put his private parts in her private parts on two different occasions, "he got on his knees and licked my privates." After the victim was driven to her school and released, she ran home. Officer Frederick Simpson of the Austin Police Department had already arrived at her home as a result of the victim's friend having reported that "someone had picked her [the victim] up and drove her off." After obtaining a description of her abductor, Simpson accompanied the victim to the hospital.

Dr. Beth Nauert, a pediatrician, testified that her examination of the victim at Brackenridge Hospital on April 25, 1990, revealed bruises and scratches over her body and an acute injury that was consistent with vaginal penetration and the account of events related to her by the victim. Two days after the attack, the victim identified the appellant from a six person photographic line-up shown her by the police. At trial, she made an in-court identification of the appellant as the person who had attacked her. Following the photographic identification of appellant as the assailant, a warrant was issued for appellant's arrest. As the officers approached appellant's residence on April 28, 1990, they observed him leave his apartment and walk toward his car. Upon seeing the officers, appellant "turned around and started running."

Appellant's challenge to the sufficiency of the evidence is directed to the lack of corroborative evidence and significant discrepancies in the description of the assailant and the physical characteristics of the appellant. Appellant further points to the fact that the victim identified a light blue Buick Riviera as being similar in appearance to the vehicle driven by the suspect. Following his arrest, it was determined that appellant possessed a gray Oldsmobile Toronado with a license plate number that contained none of the numbers that the victim had given the police. Scientific tests of appellant's hair, saliva and blood were inconclusive. Because a condom recovered at the scene had degraded, there was an inability to determine the blood type and enzyme type of the person who produced the semen. Testing of fabrics found on the victim and those recovered from the appellant's car were also inconclusive.

Even if the victim had not immediately reported the attack following her release, a victim's uncorroborated testimony supports a conviction under Penal Code 22.021 if the victim was younger than fourteen years at the time of the offense. See Tex. Code Crim. Proc. Ann. art. 38.07 (Supp. 1992); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). When reviewing a challenge to the sufficiency of the evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

The Court of Criminal Appeals in Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988), amplified on the correct way to apply the Jackson standard:

 

The court is never to make its own myopic determination of guilt from reading the cold record. It is not the reviewing court's duty to disregard, realign or weigh evidence. This the factfinder has already done. The factfinder, best positioned to consider all the evidence first-hand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt. Such a verdict must stand unless it is found to be irrational or unsupported . . . by the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict.

 

The jury, as judge of the facts, had the opportunity to observe the victim carefully and to evaluate the weight and credibility of her testimony. See Hernandez v. State, 804 S.W.2d 168, 170 (Tex. App. 1991, pet. ref'd). We believe that a jury could reasonably infer that the victim's lack of accuracy in describing her assailant and his vehicle could be attributed to her age and the trauma necessarily associated with the sexual assault. We conclude that a rational trier of fact could find beyond a reasonable doubt that the appellant was guilty of the charged offense. We overrule appellant's first point of error.

The testimony of T.S., a twenty-one year old female, forms the basis of appellant's second point of error concerning the admission of an extraneous offense. T.S. testified that she was at a bus stop in route to work when the appellant forced her into a car in April 1990. He drove to a dirt road where she observed a no-outlet sign. At this point she started getting out of the vehicle. Appellant pulled her jacket and shirt off before she was able to elude him. T.S. reported the attack to the Rape Crisis Center and contacted the police a few days later. T.S. identified appellant as her attacker from a photographic line-up at the police station and made an in-court identification of appellant in the trial of the instant cause.

Appellant concedes that no formal objection was made by defense counsel at the trial to the introduction of the extraneous offense testimony. We are not persuaded by appellant's contention that the court's instruction limiting the purpose for which the jury might consider such evidence amounted to an indication by the court that an appropriate objection would have been overruled.

Prior to the introduction of the testimony of T.S., a bench conference was held to discuss the date the State gave notice of its intention to introduce an extraneous offense. In addition, defense counsel called the court's attention to a case holding that where identity is established by direct evidence, cross-examination of the witness does not raise the issue of identity. However, at no time did defense counsel voice an objection that the proffered evidence was not relevant, or that it constituted an extraneous offense or extraneous misconduct, or in any other manner apprise the court that appellant objected to the admission of the evidence complained of on appeal. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). Absent a proper objection, no error is preserved for review. See Tex. R. App. P. Ann. 52(a) (Pamph. 1992). Appellant's second point of error is overruled.

The judgment is affirmed.

 

Tom G. Davis, Justice

[Before Chief Justice Carroll, Justices Jones and Davis*]

Affirmed

Filed: September 16, 1992

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