TIMOTHY CURTIS CULLUM, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued October 18, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00142-CR
............................
TIMOTHY CURTIS CULLUM, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81643-04
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OPINION
Before Chief Justice Thomas and Justices Bridges and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant was charged in a two-count indictment with aggravated sexual assault of a child (Count I) and indecency of a child (Count II).   See Footnote 2  Appellant pleaded not guilty, and a jury found him guilty of aggravated sexual assault of a child. After hearing punishment evidence, the trial court assessed appellant's punishment at thirty years' imprisonment.
        In two points of error, appellant contends the evidence was legally and factually insufficient to support his conviction. The State responds the evidence is legally and factually sufficient to uphold the jury's guilty verdict for aggravated sexual assault. We affirm.
Standard of Review
        The standard of review for legal and factual sufficiency of the evidence is well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). The ultimate question in a factual sufficiency review is whether, considering all the evidence in a neutral light, a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).
        Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (legal sufficiency review); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (factual sufficiency review). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.
Background
        At the time of trial, D. G., the complainant, testified she was six years old and in the first grade.   See Footnote 3  Ms. White was her teacher and she liked school. She lived with her parents, brothers, sisters, and Papa. She had six pet birds and ten baby hamsters which she helped care for and feed. Lion King is her favorite game. D. G. watches television and her favorite is “The Cat Movie.” D. G. knows the difference between truth and a lie.
        Something happened to her. She knew about “good” and “bad” touches and “green-flag” and “red-flag” touches. A hug would be a good touch; kissing her cheek would be a bad touch. A high-five is a good thing. A bad touch would be on the “red part.” The “red part” is a part of her body when she makes “pee-pee”; it makes her go to the bathroom. Her private part is on top of her clothes.
        D. G. knows Timmy is her cousin. She saw Timmy at her house. She has visited Timmy at her great grandmother's house. They had fun. They did flips and cartwheels outside. Timmy did not do flips. She has two grandmothers: Helen and Janet. One of her grandmothers was home; the other had gone to Bingo. Grandma was taking care of her. Her grandma lives in McKinney. Her mom was at her home. She got a touch on her “red part” at her grandma's house.
        She was sitting on the couch watching television in the living room. She was wearing shorts and a shirt. Timmy was in the living room with her. Timmy touched her red part. He did not touch her with his foot, elbow, shoulder, head, knee, or eye. Timmy touched her with his hand. It felt bad. It hurt. Timmy did not say anything when he touched her. His hand was not on her skin. His hand was “[i]n my clothes.”
        D. G. remembered kicking at Timmy while they were watching television. She was kicking at him “for him to get away from [her].” When he touched her she said, “[g]et away from me,” and Timmy walked away when she said that. She was given boy and girl teddy bears and asked to point to where the red part was. She pointed to the “latter part of the doll.”
        After Timmy did that to her, she told “[h]is momma” and “[m]y momma.” It was a “hard thing” to tell. After she told, she had to go to the children's place. The nurse looked at her. That was kind of a bad thing. D. G. did not like it. She talked to another lady there who asked her questions. She is not married to appellant. She is neither fourteen nor seventeen years old. D. G. identified appellant in court.
        On cross-examination, D. G. testified she went to her grandma's house a lot. D. G. lives in Greenville and her grandmother lives in McKinney. A kiss on the cheek is a bad touch. Her mommy gives her hugs and kisses on the cheek. That is not a bad touch. It is a good touch when mommy touches her on the cheek. She learned about red touches and green touches from the counselor. A green touch is a good thing. A red touch would be a bad thing. She had talked to the counselors, Kristi, and Marlita about that, but just one time. She had seen the dolls before that Kristi had showed her. She had seen them two times. Marlita did not show her the dolls, just Kristi.
        It was summertime when she was not in school. She had just finished kindergarten. She only went half a day. She had lunch at the kindergarten. She did not take naps.
        Timmy touched her on her clothes. He did not touch her underneath her clothes. When they were on the couch, he touched her “red part.” After Timmy touched her, he did not make her touch him anywhere on his body. He did not touch her anywhere on her body with his mouth. D. G. was mad at him. She was kicking at him to get away. She has kicked at him before to get away.
        Carol Goldberg testified to the following facts. She is a registered nurse employed on the staff of Pediatric Associates of Dallas where she has been for 20 years. She is a SANE.   See Footnote 4  She is certified in both adult and pediatrics out of the Collin County Children's Advocacy Center (CCCAC), and is on a team of nurses who service all the emergency rooms in Collin County. Goldberg gave her educational background and explained that a SANE is a registered nurse who has been taught to do a comprehensive examination on a sexual assault patient. She has the ability to collect forensic evidence. After receiving special training, one becomes certified and must take continuing education to maintain that certification. Goldberg has performed over 150 examinations. Usually she is called by law-enforcement of the CCCAC.
        On August 11, 2004, Goldberg conducted a sexual assault examination on D. G. at the CCCAC, where there is a “multi-disciplinary team . . . .”   See Footnote 5  No one else was present at the time of the examination.   See Footnote 6  Goldberg gets permission from a parent or guardian to examine the child and determines if there are any medications involved. Goldberg explained it is important to know whether an incident is acute or non-acute.   See Footnote 7  Goldberg explained that the first part of the examination is a history - every single thing the child says is in quotation marks - a head-to-toe assessment looking for any type of trauma, a detailed genital examination, and a rape kit collection during an acute examination.
        Goldberg explained the interview she does is not as detailed as an ordinary interview or forensic interview. According to the H.I.P.A.A. law, she does not record what the child says. It is necessary for treatment to know why the child is there. She gets a medical history from a parent or guardian before the examination. It is important for the child's treatment to identify the alleged perpetrator, because that person may still be living in the home with the child. Goldberg puts things in quotations to show it is only from the child.
        D. G. described a sexual contact. There was nothing unusual about her demeanor. Goldberg read, “[m]y cousin Timmy did something to my private part. I as - I was at momma's grandmother's house, and Timmy was there. He put his hand inside my panties and put his finger inside me, and he rubbed it.”   See Footnote 8  And in parenthesis Goldberg's report says, “[c]hild showed me with her finger on the side of her cheek how he rubbed her. I told my mom on Sunday.” D. G. did not say which Sunday.
        After the verbal history the next step is the physical examination.   See Footnote 9  Goldberg explained in clinical details the female sexual anatomy and explained that “[a]nything going past the labia majora is considered penetration.” During her examination of D. G., she did not note any trauma; however, she explained there can be penetration without trauma. There was nothing significant that occurred during the interview, nor was there anything to indicate any pressure by the person who brought D. G.
        On cross-examination, Goldberg testified D. G. did not say all that was quoted in “one big breath . . . .” In the beginning it was difficult to get the victim to stay still. She was “all over the exam room” asking questions about everything. Goldberg had to focus D. G. Goldberg explained the child would make a statement and Goldberg would ask a question. Quotes within the report are a series of D. G.'s responses made after Goldberg questioned her. Goldberg did not lead the child. She just takes what the child says and writes it down. Goldberg did not demonstrate rubbing to the victim. The child just demonstrated it that way.
        Goldberg's preference would be that the child would say nothing happened to her. What is recorded in the verbal history is what D. G. told her. There was no sexual assault counseling referral. Goldberg did not give the parent any written or verbal information. D. G.'s date of birth is January 30, 1999.
        Christy Gilmore testified that D. G. is her daughter. She has two grandmothers: Janet Gilmore and Helen McBride. They were staying together at the time of this offense on July 20, 2004, in Collin County, Texas. Her aunt, Belinda Combs, was also living there. Timmy, her cousin, was there and her mother's boyfriend. Gilmore dropped D. G. off there for an overnight stay.
        Gilmore's mother and her boyfriend brought D. G. home on July 21. D. G. was acting “real distant, real - she's - I don't know. She was, like, to herself. She didn't want anybody touching her or anything, and that's about it. She wouldn't sleep in her bed tonight - that night. She was scared.” That was unusual. Gilmore questioned D. G., asking her if anybody had ever touched her in her private parts. After they talked, she went to bed. The next day Gilmore contacted law- enforcement. Gilmore then took D. G. for an examination. D. G. was interviewed at the CCCAC. Gilmore took D. G. for that interview. D. G. continued to be a little withdrawn; she acted like she was angry. D. G. was hitting her brother and “stuff like that . . . .” Gilmore never told D. G. what to say.
        On cross-examination, Gilmore testified she had no pending criminal charges. She had been arrested twice, but was not on probation.   See Footnote 10  An aggravated assault with a deadly weapon charge was dismissed. The other arrest was for interference with a 911 call. She is not using methamphetamine and has not been in drug treatment. Gilmore asked D. G. about being touched because of D. G.'s demeanor and because of something her mother had told her. Gilmore agreed that D. G. was described on state's exhibit number one as a “[s]weet happy little girl.” Gilmore testified D. G.'s “behavior wasn't very well.” D. G. would not listen to her in the lobby and would not let Gilmore leave her in the room by herself. Gilmore testified she thought she was in the examination room with D. G., but she really could not remember if she was. At the time of trial, Gilmore's mother was incarcerated in the penitentiary on a possession of drug charge.
        D. G. threw a fit and wanted to stay at her grandmother's house, so Gilmore let her. D. G. now lives with her father. Gilmore had never talked with D. G. about things of a sexual nature. D. G. was not allowed to watch adult television shows. Gilmore has three children. None of them is presently living with her. They were taken away by Child Protective Services on January 24, 2005. D. G.'s father is different from the father of the two boys.
        Michelle Schuback testified she is a community resource director and a forensic interviewer for the CCCAC. After stating her educational background, Schuback testified she has conducted over 1400 interviews. Schuback generally knows the interviewee's name, age, what the allegation is, and “that's about it.” Schuback does not read an offense report beforehand. She described the technique of using non-leading, or open-ended, questions. The CCCAC makes sure a child knows the difference between truth and a lie. It is hard to say there is a “'typical' behavior.” Disclosure of abuse is a process - not an event that happens. Typically, children maybe give tidbits of information and then look to see the reaction from adults. There is a certain comfort level a child must reach before the child is able to tell what happened to him or her. It is difficult to do.
        Schuback interviewed D. G. on July 29, 2004, at the CCCAC. The interviewer first builds rapport and then elicits information. Schuback makes notes of a child's demeanor and body language. D. G. was very responsive during the “rapport-building” portion of the interview; she was not as responsive during the second part - she was withdrawing and shutting down. Schuback considered D. G.'s behavior to be appropriate. D. G. was very descriptive and pointed to her body when discussing the events.
        On cross-examination, Schuback testified children go to the CCCAC who are not really victims of sexual or child abuse. Schuback explained the difference in focus questions and leading questions. She did use focus questions; she did not use leading questions. Children look for support; they observe the adult to get their reaction. If an adult is responding in a positive manner, a child is more willing to disclose things.
        Sergeant Dale Ingram   See Footnote 11  testified before the jury he is a sergeant with the Collin County Sheriff's Office attached to the child abuse task force in the CCCAC since 1986. In August 2004, Ingram was assigned to investigate appellant's case. He testified to the steps taken in his investigation. The cases are usually referred from CPS. D. G. was a victim. Ingram assisted in scheduling a forensic interview for D. G. and attended that interview.   See Footnote 12  Ingram also assisted in scheduling the SANE examination.
        Based on the victim's sexual assault outcry, Ingram scheduled an interview and met with appellant. As a result of Ingram's investigation, on August 2, 2004, based on probable cause, appellant was arrested for aggravated sexual assault of a child.   See Footnote 13  On cross-examination, Ingram agreed with defense counsel there is a lot of difference between probable cause and “beyond a reasonable doubt . . . .” However, Ingram testified he learned more evidence during his investigation.
        After the State rested, the defense rested without presenting any evidence.   See Footnote 14  The jury found appellant guilty of aggravated sexual assault of a child as charged in count I of the indictment.         Appellant elected to have the judge assess punishment. After hearing punishment evidence, during which appellant testified and denied the offense, the trial court set appellant's punishment at thirty years' imprisonment in the penitentiary
Analysis
         The jury found appellant guilty of aggravated sexual assault of a child as charged in count I of the indictment. Count I of the indictment alleged, in relevant part, appellant did:
 
[I]ntentionally and knowingly cause the penetration of the female sexual organ of [D. G.], a child then younger than fourteen (14) years of age and not the spouse of the defendant, by means of defendant's finger . . . .
 
        A person commits aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the anus or female sexual organ of a child by any means and the victim is younger than 14 years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), 2(B) (Vernon Supp. 2006).
 
        Appellant contends the evidence was so weak it undermined confidence in the jury's determination of guilt. Appellant argues “[t]he entire case is dependent upon the interpretation of questions put forth by the [Sexual Assault Nurse Examiner (SANE)] nurse and skewed compilation of responses reported by the SANE nurse.” Appellant contends the SANE was biased and “what she said the victim stated is in direct conflict with what the victim stated on the witness stand.”
        The evidence heard by the jury shows that shortly after the assault, D. G. told the SANE appellant put his hand inside her panties and put his finger inside her. The SANE testified she asked D. G. questions and recorded D. G.'s responses in quotation marks exactly as D. G. made them. That record was admitted into evidence at trial. The SANE read to the jury exactly what D. G. told her. Specifically, she read:
 
“My cousin Timmy did something to my private part. I as - I was at my momma's grandmother's house, and Timmy was there. He put his hand inside my panties and put his finger inside me, and he rubbed it.” And in parenthesis it says, “child showed me with her finger, on the side of her cheek, how he rubbed her. I told my mom on Sunday.”
 
        At trial, D. G. testified it hurt when appellant touched her “red part” while she was at her great grandmother's house and she and appellant were on the couch watching television. Concerning whether there was skin-to-skin contact, the following exchange occurred between the prosecutor and D. G.:
 
[The State]: Okay. Was his hand on your skin?
[D. G.]: (Shakes head from side to side.)
[The State]: Where was his hand?
[D. G.]: In my clothes.
[The State]: On your clothes.
 
        On cross-examination, D. G. gave the following testimony in response to questions from defense counsel:
 
[Defense Counsel]: [W]hen we were playing with these dolls, did you say that Tim touched you on your clothes?
 
 
 
[D. G.]: (Nods head up and down).
[Defense Counsel]: Is that a “yes”?
[D. G.]: Yes.
[Defense Counsel]: Okay. Did he touch you underneath your clothes?
[D. G.]: (Shakes head from side to side).
[Defense Counsel]: Is that a “no”?
[D. G.]: (Shakes head from side to side).
 
[Defense Counsel]: That would be a “no”? You told me you were kicking at him to get away.
 
 
 
[D. G.]: (Nods head up and down).
 
        Penetration of the vaginal canal is not required. See Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.). Proof of the slightest penetration is sufficient. See Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972). Penetration occurs as long as contact with the female sexual organ can reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
        As the fact-finder, the jury was the exclusive judge of the credibility of the witnesses and was free to believe some, all, or none of the evidence presented. See Chambers v. State, 805 S.W.2d 459, 461 (Tex Crim. App. 1991). Any conflicts in the testimony were for the jury to resolve. We find the jury's note requesting D. G.'s testimony about whether the touch hurt her to be significant. Applying the standards set out above, we conclude the evidence, if believed, is both legally and factually sufficient to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the female sexual organ of a child younger than fourteen years of age and not his spouse with his finger. We overrule each of appellant's points of error.
        We affirm the trial court's judgment.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
060142F.U05
 
Footnote 1         The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2         The jury was instructed on both the greater offense of aggravated sexual assault of a child and the lesser offense of indecency of a child. The jury found appellant guilty of the greater offense of aggravated sexual assault of a child as charged in count I.
Footnote 3         Outside the jury's presence, after hearing testimony, the trial court found the child witness competent to testify.
Footnote 4         Sexual Assault Nurse Examiner.
Footnote 5         D. G. was referred by the Collin County Sheriff.
Footnote 6         Goldberg explained that a parent is typically not present because they do not want anyone giving additional information.
Footnote 7         An acute examination is one done within 72 hours of the assault. D. G.'s examination was non-acute.
Footnote 8         When Goldberg began reading, defense counsel objected and the trial court sustained the objection. After Goldberg's complete report was marked and admitted into evidence, over a hearsay objection, Goldberg then read from her report.
Footnote 9         Goldberg explained the specific details of exactly how the examination is conducted. She testified that although it is very embarrassing to the child, it is conducted in a “knee to chest” position to better enable the nurse to see with the aid of a colposcope.
Footnote 10         Gilmore testified she had not been arrested for methamphetamine.
Footnote 11         A hearing was conducted outside the jury's presence for consideration of eliciting before the jury certain statements made by the appellant to Ingram; however, the trial court disallowed those statements.
Footnote 12         Ingram was not in the interview room. He observed the interview through a closed circuit television in another room.
Footnote 13         Ingram identified appellant in court.
Footnote 14         At the close of the evidence, the trial court denied defense counsel's motion for a directed verdict on count I, the greater offense of aggravated sexual assault of a child. The trial court also denied defense counsel's request for a limiting instruction on the SANE examination. Arguments were presented, and the jury retired to deliberate. During its deliberations, the jury sent out a note in which they asked if D. G. used the word “hurt” in describing what happened. That portion of D. G.'s testimony where she nodded her head up and down in response to the prosecutor's question, “Did [the touch] hurt you?” was read to the jury.