CHARLES EDWARD COOPER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed July 2, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00485-CR
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CHARLES EDWARD COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F05-71887-SUX
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
        Charles Edward Cooper appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age. In three points of error, appellant argues the trial court erred in overruling his motion to suppress evidence seized from his vehicle, and the evidence is factually and legally insufficient to support his conviction. We affirm the trial court's judgment.
        On the afternoon of April 2, 2005, eleven-year-old S.M. was playing outside with a group of children when appellant approached them in his vehicle and offered to pay each of them to wash his car. The children agreed, and at least a few of the them got into appellant's vehicle during the cleaning process. When the children were finished, appellant paid the girls each one dollar, and paid the boys fifty cents each for their work. Appellant then pulled aside S.M. and two other girls, I.B. and T.S., and offered each of them ten dollars to help make some T-shirts for his friend, Tommiecean Simons. They agreed and made plans to meet appellant at Bonnie View Park nearby. After appellant drove away, I.B. and T.S. changed their minds and went home, but S.M. still went to the park to make the T-shirts.
        At the park, appellant met with S.M. and told her to get into his car. Once the two were in the car, appellant offered to pay her more money than the rest of the girls and proceeded to drive her around South Dallas. Appellant eventually stopped in a quiet, isolated place with a fence and “real tall grass.” Appellant told S.M. to put on one of the T-shirts they were going to decorate, and she complied. In doing so, she got out of the car, took off her shirt and pants, and put the T-shirt on. She was given a sack by appellant to put her clothing in, which she placed in the trunk of the car at his orders. Appellant then told her that she would need to take off her bra and panties in order to write on the T-shirts with markers. S.M. took her bra and panties off and placed them in the trunk with her other clothes.
        Appellant drove S.M. down the road to another isolated place “with tires and cans and trash.” Appellant told S.M. to get out of the car. He walked over and sat down in the front-passenger seat of the car. He asked S.M. to stand in front of him with her back facing him and told her not to turn around. In the corner of her eye, S.M. saw a container of Vaseline. S.M. then felt appellant's hands on her back and something touching her “butt” that she knew was not right. She testified that appellant's hands were “greasy,” and she felt something painfully pushing on both the outside and the inside of her “butt cheeks” “where she goes to the bathroom.” This was clarified to mean her anus. She turned to face appellant and saw that his penis was exposed and had a “greasy” appearance. S.M. began crying and told appellant to cover himself. Appellant replied, “I thought you knew what I meant.” Before driving her back to the location where she had washed his car, appellant gave her a fifty dollar bill.
        When S.M. exited the car, her friends approached and told her they had been looking for her. She told them she had been at the park for the entire time. Some of her friends testified that she was crying, and others identified the driver as the man who hired them to wash his car. The following day, S.M. disclosed to her parents what had happened and gave the fifty dollar bill to her mother, Sharonda Mitchell, who gave the money to police.
        After a medical examination, Dr. Matthew Cox testified that S.M.'s anal examination was normal, and there were no signs of bruising, bleeding, or infection. He testified that, despite the exam being normal, the result does not rule out sexual abuse, and in fact most examinations of sexually abused children have normal results. He further noted that he would not expect to see any identifiable damage to S.M.'s anal region, based on the description he received of the assault.
        The laboratory analysis failed to discover any seminal fluid or hairs that were conclusively linked to appellant. S.M.'s forensic interview yielded several “sensory details” that were described as an indicator of truthfulness. On April 17, 2005, S.M. identified appellant as her assailant in a six- person lineup within a matter of seconds. I.B. and T.S. also identified appellant from the lineup. The following day, Dallas Police Detective Joseph Corden obtained a search warrant for the vehicle outside appellant's home after matching it with the description of the vehicle described by S.M. Corden searched the vehicle and found a jar of Vaseline locked in the glove box, two markers in the front seat, and two black T-shirts in the trunk.
        Though appellant did not testify at trial, he attempted to prove that S.M. had made up the allegations and claimed one of the children stole a ring and fifty dollars from his vehicle. While there were no witnesses nor any reports filed with police regarding the theft, Tommiecean Simons testified that appellant told her about the missing ring the day of the incident. The trial court denied Cooper's motion to suppress evidence obtained during the search of his vehicle. Appellant was found guilty of aggravated sexual assault of a child younger than fourteen years of age, and this appeal followed.
        In his first point of error, appellant argues that the trial court erred in overruling his motion to suppress evidence seized from his vehicle. Specifically, appellant argues that due to the staleness of the facts Corden set out in his affidavit, Corden failed to establish the probable cause necessary to obtain a search warrant.
        We review a trial judge's ruling on a motion to suppress for abuse of discretion. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In doing so, we give almost total deference to the trial judge's determinations of historical facts and review de novo the trial court's application of those facts to the law. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Under this standard, we may not disturb the trial judge's findings unless we find an abuse of discretion. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). In conducting our review, we must view the record and all reasonable inferences therefrom in the light most favorable to the trial court's ruling. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd). Because the trial judge is the sole trier of fact and judge of witness credibility during a motion to suppress hearing, he or she is free to believe or disbelieve all or part of the witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).         Appellant argues that the affidavit by which the search warrant was based used stale evidence and thus yielded insufficient probable cause. A search warrant is not to be issued unless sufficient facts are presented to the magistrate to show that probable cause exists. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2007). Probable cause ceases to exist and the facts become stale when, at the time the search warrant is issued, it would be unreasonable to presume that the items remain at the suspected place. McKissick v. State, 209 S.W.3d 205, 214 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Guerra v. State, 860 S.W.2d 609, 611 (Tex. App.-Corpus Christi 1993, pet. ref'd). While there is no mechanical application to determine if facts have become stale, the court looks at: (1) the time elapsed since the crime; (2) the nature and property of the objects to be seized; (3) the nature of criminal activity; and (4) the likelihood that the property has been removed. Hafford v State, 989 S.W.2d 439, 441 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd); Guerra, 860 S.W.2d at 611; Ellis v State, 722 S.W.2d 192, 196-97 (Tex. App.-Dallas 1986, no pet.).
        Here, the trial judge was free to believe that the information set forth in Corden's affidavit reasonably provided the magistrate with sufficient facts to conclude that probable cause existed. Even though the warrant was not issued until sixteen days after the offense, Corden immediately obtained it one day after making a positive identification of the appellant. Corden's affidavit sought the recovery of a jar of Vaseline, magic markers, and T-shirts. These objects are not fragile or rapidly consumable, and could reasonably be expected to be wholly intact inside the car when the warrant was issued. The nature of the crime itself involved driving around and attempting to pick up girls in appellant's vehicle, leading to a reasonable possibility that these items would remain in appellant's vehicle after the offense. While it is true that these items could have reasonably been disposed of before the affidavit was presented to the magistrate, all these items themselves were not particularly incriminating in their own right, and could be believed to still be in appellant's vehicle at the time of the search. See Lopez v. State, 535 S.W.2d 643, 648 (Tex. Crim. App. 1976). Considering the reasonable inferences that the affidavit supports, a substantial basis existed to support the judge's conclusion that there was, in fact, probable cause. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). The magistrate was free to believe the search would yield evidence tending to show the appellant's guilt. Id. Considering all the facts, we cannot conclude the trial judge erred in denying Cooper's motion to suppress.
        In his second and third points of error, appellant argues that the evidence is legally and factually insufficient to show that he was guilty of aggravated sexual assault. In a legal sufficiency review, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). Specifically, we must ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case based on factual insufficiency, the court must look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. Only “to a very limited degree” may a reviewing court substitute its judgment for the jury's determinations on the weight and credibility of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (stating that the factual sufficiency review requires “due deference” to be afforded to jury's determinations). Absent a contradictory showing from the record, an appellate court should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        Appellant argues there was no evidence to support his conviction other than S.M.'s account of sexual contact. The State was required to prove beyond a reasonable doubt appellant intentionally or knowingly caused the penetration of the anus or sexual organ of another person by any means, without that person's consent. Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i) (Vernon Supp. 2007). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). In the case at bar, appellant claims that there was no evidence except for S.M.'s insufficiently detailed account of the offense, and S.M. was an untruthful person who had a motive to fabricate the story because she had stolen a ring and fifty dollars from his vehicle. Despite appellant's arguments, S.M.'s testimony alone that appellant contacted his penis to her anus is enough to support his conviction. See Tear, 74 S.W.3d at 560.
        S.M. testified she met appellant at the park, and he drove her to a secluded location and ordered her to remove her clothes until she was left only wearing a T-shirt. He then took her to another isolated place, ordered her to stand outside the passenger side of the car and told her not to turn around as he sat in the front seat. She saw a bottle of Vaseline and felt appellant's “greasy” hands on her back and his penis pushing on her anus. S.M., I.B., and T.S. testified appellant paid them to wash his car, and arranged for the girls to meet him at the park to help make the shirts. Along with S.M.'s brother, T.M., they testified appellant dropped S.M. off at the original location after the offense.
        The only evidence in support of appellant's claim is testimony from Tommiecean Simons that appellant told her one of the children who washed his vehicle had stolen a ring, and possibly fifty dollars, from the glove compartment of his car while the children were washing it. She testified she asked Sharonda the following day about the ring, and claimed Sharonda told her she had it. Sharonda testified she did not have the ring, but asked T.M. about it. S.M., I.B., T.S., and T.M. all testified they did not see a ring or a fifty dollar bill in appellant's vehicle. They testified they heard that a ring was missing from the vehicle, but knew nothing more about it. Appellant further claimed that S.M. was an untruthful person, but Sharonda and S.M.'s teacher Gina Williams testified she is very honest and truthful. I.B. and T.S. also testified that S.M. was truthful about serious and important things. Under these circumstances, the evidence was legally and factually sufficient to show appellant sexually assaulted S.M. Jackson, 443 U.S. at 318-319; Watson, 204 S.W.3d at 415.
        We affirm the trial court's judgment.
 
 
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                                                                  DAVID L. BRIDGES
                                                                  JUSTICE
 
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Tex. R. App. P. 47
070485F.U05