RICKY RICARDO RAMOS, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 25, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00784-CR
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RICKY RICARDO RAMOS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-82927-06
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OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Francis
        A jury convicted Ricky Ricardo Ramos, Jr. of sexual assault and assessed punishment at imprisonment for five years, probated for five years, and a $10,000 fine. In two issues, the appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
        Appellant was indicted on two counts of sexual assault. Count I alleged the contact or penetration of the complainant's sexual organ by appellant's sexual organ, and Count II alleged the contact or penetration of the complainant's anus by appellant's sexual organ. The jury found appellant guilty of Count II and not guilty of Count I.
        C.H. planned to spend the weekend with her sister-in-law Sara Moss while her husband watched their two young children. When C.H. went to Sara's house, there were several other people there, including appellant. C.H. had met appellant a few years earlier, but did not know him. They all went together to a local bar that evening. C.H. had a few alcoholic drinks, then got sick. She went to the bathroom and vomited, then left the bar and returned to Sara's house. C.H. slept while in the car, and did not remember how she got into the house or into bed. C.H. did not remember anything after leaving the club until she awoke later to find Sara yelling at appellant, who was standing above her. C.H. was lying on her back in her niece's bed. She was not wearing panties and appellant was “over her.” C.H. testified she had a “feeling” she had been sexually assaulted based on the circumstances, but she did not remember feeling anything. C.H. “freaked out” and started crying. Appellant ran out of the room, and Sara called 911. An ambulance transported C.H. to a hospital, where she was examined. C.H. testified she never asked appellant to come into the bedroom and never indicated to appellant that she wanted to have sex with him.
        Sara Moss testified she has known appellant for many years and considered him a good friend. On March 4, 2006, she had several friends at her house, including C.H. Later that evening, everyone decided to go to a local bar. All except appellant drank at the bar. Appellant was the designated driver. C.H. got sick while at the bar and vomited. Sara helped C.H. back to the car, where C.H. “passed out almost immediately.” Everyone returned to Sara's house around midnight. Sara put C.H. in her daughter's bedroom and helped C.H. get “comfortable,” by removing C.H.'s jeans and putting a T-shirt on C.H. to sleep in. When Sara put C.H. in the bed, C.H. had on the shirt and a pair of panties. C.H. was asleep when Sara left the bedroom and locked the door so no one would bother her. Another couple spent the night in another bedroom, Sara and her boyfriend went to her room, and appellant laid down on the living room couch. A short time later, Sara heard a door open and thought maybe C.H. might be sick. Sara got out of bed and went to check on C.H. The door was unlocked. Sara opened the door and saw appellant lying on top of C.H. C.H. was unconscious with her head hanging off the side of the bed, and her panties were on the floor. Appellant was holding himself up with his arms and his pants were pulled down below his knees. Sara saw appellant's “hip area” touching C.H.'s hip area. Sara testified she saw appellant's penis “up against” C.H.'s vagina, but could not tell if his penis was inside C.H. Sara asked appellant what was he doing. Sara did not know if C.H. was breathing, so she walked to the bed and slapped C.H.'s face. After three slaps, C.H. finally “came to,” looked at appellant, and started screaming and crying. Appellant jumped up and started pulling his pants up and running at the same time. Appellant froze when Sara first opened the door and did not move until after C.H. began screaming. Appellant kept repeating, “[I]'m sorry, Sara. I'm sorry, I'm sorry.” Sara chased appellant out of her house, and called 911.
        Thomas Milam and Stephanie Honzell spent the night in one of Sara's bedrooms after they returned from the bar and put C.H. to bed. Appellant was lying on the living room couch when Thomas and Stephanie went to the bedroom across the hall from where C.H. was sleeping. About thirty minutes after going to bed, Thomas got up and went to the bathroom. Sara came out of her bedroom and asked where appellant was. Thomas noticed appellant was not on the couch and told Sara maybe appellant had gone home. Thomas went back into the bedroom, then heard Sara yelling “some profanity.” Thomas opened the bedroom door and looked across the hall. He heard Sara cursing appellant, and saw C.H. lying on the bed “passed out.” C.H. was naked from the waist down. Appellant was naked and bending down to pick up his clothes. Thomas saw Sara slap C.H. on the face as appellant ran from the room while putting on his pants. Sara followed appellant, yelling, “[G]et out of here.”
        Melissa Haas, a forensic scientist with DPS, testified she analyzed vaginal and anal swabs from the rape kit obtained from C.H. There was sperm found on C.H.'s anal swab, but no sperm found on the vaginal swab. DNA analysis from the sperm found on C.H.'s anal swab matched appellant's DNA. Haas testified that if an anal swab is done correctly it is taken from the anus of the body, and that it is possible an anal swab could come from the leg and be mislabeled.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, No. 0182-07, 2008 WL 2081638, at *5 (Tex. Crim. App. May 14, 2008).
        The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the contact or penetration of the anus of C.H. with appellant's sexual organ without C.H.'s consent. See Tex. Penal Code Ann. § 22.011(a)(1) (Vernon Supp. 2007). The State may prove penetration by circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990). Evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt. See Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974).
        Appellant argues the evidence is legally and factually insufficient because C.H. did not know whether or not she was sexually assaulted, no one saw appellant's sexual organ contact C.H.'s anus, and the mere presence of appellant's DNA alone is insufficient to prove contact with C.H.'s anus. Appellant asserts that because the jury found him not guilty of Count I of the indictment, they obviously did not find Moss's testimony credible. The State responds the evidence is legally and factually sufficient to support the jury's verdict.
        Sara, Thomas, and Stephanie saw appellant lying on top of C.H. while C.H. was unconscious and naked from the waist down. Sara saw appellant's penis “against” C.H.'s vagina, but did not see any penetration. Although C.H. testified she did not know whether she was sexually assaulted by appellant or not, she “had a feeling” appellant sexually assaulted her because he was on top of her and her panties were on the floor. Forensic analysis on C.H.'s anal swab showed the presence of sperm that matched appellant's DNA.
        Appellant essentially asks us to find the witnesses' testimony was not credible because the jury acquitted appellant of one of the counts of sexual assault. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Lancon, 2008 WL 2081638, at *5. The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Moreover, inconsistent jury verdicts have no effect on the sufficiency of the evidence. See Jackson v. State, 3 S.W.3d 58, 61-62 (Tex. App.-Dallas 1999, no pet.).
        Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's sexual assault conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Luna, 515 S.W.2d at 273. We resolve appellant's issues against him.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070784F.U05