Gary Lynn Nichols v. State of Texas--Appeal from 91st District Court of Eastland County

Opinion filed July 24, 2008

In The

Eleventh Court of Appeals

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 No. 11-06-00349-CR

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 GARY LYNN NICHOLS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 91st District Court

Eastland County, Texas

Trial Court Cause No. CR-06-20,956

M E M O R A N D U M O P I N I O N

The jury convicted Gary Lynn Nichols of the offense of aggravated sexual assault of a child and assessed his punishment at confinement for thirty-five years. We affirm.

In his sole issue on appeal, appellant challenges the legal sufficiency of the evidence. Appellant contends that the State failed to establish each element of the offense beyond a reasonable doubt because all of the evidence against him was circumstantial and created no more than a mere probability or suspicion of guilt and because the evidence did not exclude every other reasonable hypothesis. We note first that the reasonable-hypothesis construct urged by appellant has been rejected by the Court of Criminal Appeals and is no longer used as a measure of legal sufficiency. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991). We will apply the well-recognized standard of review for legal sufficiency: we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).

The record shows that appellant was convicted of the aggravated sexual assault of his seven-month-old daughter for penetrating her female sexual organ with his finger. The investigation in this case began when a teenage boy reported to child protective services that he had observed appellant Afinger[] his child.@

Texas Ranger David Hullum testified that appellant initiated contact with him and denied having any such contact with the victim. Ranger Hullum testified that appellant subsequently admitted Apenetrating his child to apply medication@ to a boil. The boil, however, was not inside the victim=s vagina but was located Aat the right side of the buttock, near the midline.@

Sergeant James Matthew Mull conducted two interviews of appellant, who had previously been convicted of indecency with a child. During the first interview, appellant adamantly denied that he had ever placed his finger inside the victim=s vagina. In the second interview, appellant admitted that he had put his right index finger in the victim=s vagina on two separate occasions. On a piece of paper, appellant traced his hand and drew a line indicating how far inside the vagina his finger went. This document was introduced as an exhibit at trial. Appellant told Sergeant Mull that the victim had a large boil located outside the vaginal area and that the doctor had instructed appellant to apply Desitin to treat the boil.

Robert Charles Matthews, M.D., testified that he treated the victim approximately one week prior to the alleged date of the offense for both a respiratory infection and a small bump or papule that was located an inch or two to the right of the rectal area, not near the vagina. Dr. Matthews prescribed an oral antibiotic and did not prescribe Desitin for the bump. Dr. Matthews testified that he did not instruct appellant to apply Desitin and explained that Desitin is a drying agent to be used externally only. Dr. Matthews also testified that he would not expect to see any visible sign or indication on the victim if appellant had penetrated her as he indicated in the drawing.

After reviewing all of the evidence, we hold that a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the victim=s sexual organ with his finger. The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony and, thus, was free to reject appellant=s defense that his conduct constituted medical care. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979), art. 36.13 (Vernon 2007); see also Tex. Penal Code Ann. '' 22.011(d), 22.021(d) (Vernon Supp. 2007) (medical care as a defense). The evidence is legally sufficient to support appellant=s conviction. Accordingly, appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

July 24, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.