Larry Don Ballew v. The State of Texas--Appeal from 292nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LARRY DON BALLEW, )

) No. 08-05-00014-CR

Appellant, )

) Appeal from the

v. )

) 292nd District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F04-15808-V)

)

O P I N I ON

Larry Don Ballew appeals his conviction for aggravated sexual assault of a child under the age of fourteen. He raises two issue: (1) the factual sufficiency of the evidence supporting his conviction; and (2) the trial court=s admission of portions of a court packet showing he was previously indicted for aggravated sexual assault of a child. We will affirm.

At the time of trial in November of 2004, the victim S.B. was twelve years= old and living with his mother Margaret Vigil, and stepfather, Michael Vigil, in New Mexico. When S.B. was eight or nine years= old, he would occasionally visit his grandmother=s house in Carrollton, Texas where his cousin Casey and Appellant lived. S.B. was fond of Appellant because he would take S.B. and Casey fishing, and because he had weapons and a PlayStation in his room.

According to S.B., during one of these visits, he and Casey were playing together in Casey=s room. Appellant burst into the room, grabbed S.B., and took him to his room. Appellant slammed the door and threw S.B. onto his bed. He got on the bed next to S.B. and unbuttoned S.B.=s pants. Appellant put his hand underneath S.B.=s clothes and began touching S.B.=s Aprivate.@ This continued until Casey entered Appellant=s room and Appellant told Casey to get out. After Casey left, Appellant put his mouth on S.B.=s Aprivate@ and bobbed his head. Appellant stopped when he heard a knock on the front door. He then told S.B. to get off the bed. S.B. pulled up his pants and left the room. As he was leaving, Appellant threatened to kill him if he told anyone.

On the same day that S.B. informed his mother about the incident, she heard that her oldest son had been in a fight with Appellant. S.B. told his mother he hoped Appellant did not hurt his brother in the same way Appellant hurt him. When Mrs. Vigil questioned him further, S.B. pointed to his private parts and said A[h]e put his mouth here.@ Mrs. Vigil continued to question S.B. for clarification, and he replied by saying, A[y]es, mom, he put his mouth here on my private parts.@ S.B. also told his mother that Appellant threatened to hurt him.

After comforting S.B., Mrs. Vigil called the police department. She was instructed to notify the Safehouse, a local center for abused children. Mrs. Vigil took S.B. to the Safehouse where he was interviewed about the incident. The interviewer, Eddie Lujan, described S.B. as nervous and embarrassed, but said that nothing indicated S.B. was coached in his responses.

At trial, Appellant entered a plea of not guilty. He presented testimony from two witnesses but did not testify in his own defense. The jury found Appellant guilty of the charged offense and sentenced him to forty years in the Institutional Division of the Texas Department of Criminal Justice.

Standard of Review

Appellant does not challenge the legal sufficiency of the evidence. A factual sufficiency review of the evidence begins with the presumption that the evidence supporting the conviction was legally sufficient. Moore v. State, 140 S.W.3d 720, 726 (Tex.App.- Austin 2004, pet. ref=d), citing Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). In reviewing the factual sufficiency of the evidence, we must determine whether considering all 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). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the Appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

In Issue One, Appellant challenges the factual sufficiency of the evidence by arguing that the trial testimony shows he was falsely accused. He asserts that his conviction rests solely on the testimony of S.B. He claims conflicting testimony renders S.B.=s testimony unreliable and S.B.=s unreliable testimony cannot support his conviction. Appellant contends the evidence contrary to the verdict is so strong that the beyond a reasonable doubt standard cannot be met. We disagree.

At trial, S.B. testified that he was sexually assaulted by Appellant. He stated that his cousin Casey burst into Appellant=s room during the assault. After Appellant told Casey to get out, Appellant continued to sexually assault him. S.B. testified that Appellant stopped assaulting him after hearing a knock on the front door. He also said that Appellant yelled at him after the assault and threatened to kill him if he told anyone about the incident. However, Casey testified that he never walked in on Appellant and S.B. and did not see Appellant on top of S.B. Casey also stated that he did not hear Appellant threaten S.B. During his testimony, S.B. admitted that other family members that were present in the living room did not hear Appellant=s threat.

The evidence in this case consisted solely of witness testimony. The weight to be given conflicting testimony lies within the sole province of the jury, and the reviewing court must show deference to the jury=s determination. Cain, 958 S.W.2d at 408-09. The jury is free to believe or disbelieve any witness. Torres v. State, 141 S.W.3d 645, 662 (Tex.App.--El Paso 2004, pet. ref=d). The jury apparently resolved the conflicting testimony in favor of the State and we give appropriate deference to their determination. See id.

Appellant also contends a reasonable alternative hypothesis demonstrates that Appellant was falsely accused of committing the offense. A reviewing court conducting a factual sufficiency analysis necessarily considers any reasonable alternative hypotheses raised by the evidence because the very nature of a factual sufficiency review requires the court to consider all of the evidence presented at trial and not just that which is favorable to the verdict. Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.--Dallas 1998, no pet.); see also Drewery v. State, No. 08 04 00201 CR, 2005 WL 1791630, *3 (Tex.App. -El Paso July 28, 2005, pet. ref=d)(not designated for publication). Therefore, if the evidence suggests the existence of an alternative reasonable hypothesis, the court cannot ignore it and still properly perform the analysis required under Clewis. Richardson, 973 S.W.2d at 387.

However, the mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. Id. Even when an appellant identifies an alternative reasonable hypothesis raised by the evidence, the standard of review remains the same. Id. A verdict may be overturned only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. We cannot reverse the verdict if reasonable minds could differ about the conclusions to be drawn from the evidence. Id.

Appellant argues Mrs. Vigil=s trial testimony establishes that a hostile relationship existed between Mrs. Vigil and Appellant and that S.B. was coached to falsely accuse Appellant of the offense. We again disagree. Mrs. Vigil testified that on the day S.B. told her about the incident, her oldest son had been in a fight with Appellant. Additionally, Mrs. Vigil testified that Appellant was her ex-brother-in-law and that she did not have any relationship with him. While it might be possible to construe Mrs. Vigil=s testimony as evidence of a hostile relationship, the jury apparently rejected that construction. Further, Mr. Lujan, the individual who interviewed S.B. at a center for abused children called the Safehouse, testified that nothing suggested S.B. had been coached. Ultimately, the jury was entitled to believe his testimony.

After a neutral review of all of the evidence, including Appellant=s alternative reasonable hypothesis, we conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt nor so contrary to the finding as to be clearly wrong and unjust. Accordingly, we conclude that the evidence is factually sufficient to support Appellant=s conviction. Issue One is overruled.

In Issue Two, Appellant argues the trial court erred in admitting portions of a court packet, over his objection, showing he had been indicted in another offense for aggravated sexual assault of a child under the age of fourteen because he only pled guilty to the offense of sexual assault. To preserve error for appellate review, a defendant must object in a timely and specific manner at trial and obtain a ruling on that objection. See Tex.R.App.P. 33.1(a). Further, the issue on appeal must comport with the objection made at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). If the complaint on appeal asserts a different legal theory or basis for objection than that raised at trial, the appellant fails to preserve any issue for our review. Dixonv. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998).

During the punishment phase, the trial court asked if the parties had any objection to the charge. Defense counsel stated, A[n]o other objections to the charge other than this, with this one exception, that the State=s prior is admitted only for the purposes of what he pled to, which was sexual assault versus aggravated sexual, what the original charge was.@ The trial judge responded, AWell, I mean -- off the record.@ A discussion off the record followed, but the trial court never addressed counsel=s complaint.

On the record but outside the presence of the jury, defense counsel again objected to the charge, stating, A[a]nd with regard to the charge, I object to the fact that this judgment has been set aside and subsequently dismissed, Your Honor.@ The trial judge reminded counsel that the State had not yet offered the packet for evidence and asked if that was going to be his objection when it was offered. Defense counsel answered in the affirmative. When the State offered the packet into evidence, defense counsel objected to its admission, stating, AYour Honor, I=m going to renew my objection to the admission of this exhibit based on the same objection outside the presence of the jury.@ His objection was overruled by the trial court.

After reviewing the record, it is clear that the objection to the indictment charging Appellant with a offense greater than the one to which he ultimately pled guilty was never addressed by the trial court. The objection the trial court ruled on did not relate to the indictment. Instead, it referenced a prior judgment which was dismissed after Appellant successfully served out his probated sentence. Thus, Appellant=s issue on appeal does not comport with his objection at trial. Therefore, he has failed to preserve this issue for our review. Issue Two is overruled.

Accordingly, we affirm the trial court=s judgment.

September 28, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

Barajas, C.J., Not Participating

(Do Not Publish)