CHARLES LEON WILLABY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 1, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00868-CR
No. 05-07-00869-CR
 
............................
CHARLES LEON WILLABY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F06-15180-RH, F06-15181-RH
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        A jury convicted Charles Leon Willaby of aggravated sexual assault of a child younger than fourteen years of age and indecency with a child. The jury assessed punishment at ten years' imprisonment for the aggravated sexual assault, two years' imprisonment for the indecency with a child, and recommended probation in each case. The trial judge placed appellant on community supervision for ten years in each case. In two issues, appellant contends the evidence is factually insufficient to sustain the convictions, and the trial court's judgment in the indecency case should be modified. We affirm the trial court's judgments.
 
Background
 
        The complainant, W.B., who is appellant's granddaughter, was twenty-one years old at trial. W.B. has cerebral palsy. W.B. testified that when she was three years old, she began living with appellant and her grandmother, Dolores. W.B. lived with appellant and Dolores until W.B. was eleven years old, then went to Commerce, Texas to live with her father and her father's parents. When W.B. lived with appellant, he would pick her up from the school bus in the afternoons, take her to the house, and care for her while Dolores was at work.
        Appellant also helped W.B. use the bathroom. The toilet sat atop cinder blocks, so W.B. could not maneuver her walker and get on the toilet by herself. Appellant would help W.B. pull down her panties, lift her onto the toilet, wipe her with toilet paper, and lift her off the toilet. W.B. testified that after appellant wiped her with toilet paper, he put his finger in her vagina and moved it “up and down inside.” W.B. told appellant, “[N]o, stop,” and would try to get away, but appellant usually had his other arm around W.B. holding her up. W.B. testified that appellant put his finger in her vagina “well over fifty” times. When W.B. took a nap after school, appellant would sometimes lie beside her, rub her breasts on the outside of her clothes, and put his hand on her vagina on the outside of her clothes. W.B. testified that because appellant argued “a lot” with Dolores, W.B. was afraid to tell Dolores or anyone else what appellant was doing to her. Several years after W.B. moved out of appellant's home, she told her aunt, Angela, who was appellant's daughter, that appellant had sexually abused her from the time she was three years old until she was eleven.
        Dolores testified that she cared for W.B. in her home from the time W.B. was three years old until W.B. turned eleven, after which W.B. went to live with her other grandparents in Commerce. W.B.'s mother was addicted to drugs and could not care for W.B. at that time. W.B. learned to walk while using a walker when she was five years old. Appellant cared for W.B. while Dolores was at work. Appellant was at home because he had been injured on the job. When W.B. had to use the bathroom, either Dolores or appellant would carry her to the bathroom, lift her onto the toilet, wipe her, and lift her off the toilet. The previous owners of the house had set the toilet on cinder blocks to accommodate a disabled resident, and Dolores and appellant had never lowered it. Dolores testified that W.B. could not pull down her panties by herself because she was not strong enough to hold onto the walker with only one hand. Dolores also testified that when she asked W.B. why she never told her what appellant was doing to her, W.B. said she did not want to hurt Dolores because she knew Dolores loved appellant.
        Debbie Rule, a detective in the crimes against children unit of the City of Balch Springs police department, testified that she talked with W.B. at the station when W.B. was nineteen years old. Rule suggested it is not uncommon for victims of sexual abuse to wait years to tell someone about the abuse.
        Adrea Schultz, a clinical supervisor at the Dallas Children's Advocacy Center, testified that a delayed outcry of sexual abuse by a child victim is not uncommon due to fear, shame, embarrassment, fear they will be blamed for the abuse, or fear of what will happen to the family. If a victim is sexually abused by someone in the family, it is more difficult for that victim to make an outcry. It is common for a victim not to disclose the sexual abuse to a person who is close to them, like a mother or father, and it is common for a child victim of sexual abuse to wait ten years or more to make an outcry.
        William McCasland, Jr., appellant's stepson, testified that appellant married his mother, Dolores, when McCasland was seven years old. McCasland never saw anything that caused any concerns for W.B.'s welfare. He was surprised that W.B. told his sister Angela about the abuse and yet did not tell her own mother. McCasland also testified that he never went to the bathroom with W.B. when appellant took her to the bathroom.
        Shelley is W.B.'s mother and the adopted daughter of Dolores and appellant. Shelley testified that she was surprised W.B. did not tell her about the sexual abuse because she and W.B. had grown close over the years. Shelley did not understand why W.B. had told Angela about the abuse because Angela was destructive towards other members of the family.
        Appellant testified that he never took W.B. to the bathroom and inserted his finger in her vagina. Dolores always took W.B. to the bathroom. He took W.B. to the bathroom only a few times when Dolores was busy cooking or otherwise occupied. Appellant would help W.B. get her walker into the bathroom and would lift her onto the toilet. W.B. would pull down her panties and wipe herself. While W.B. used the toilet, appellant always went back into the living room and waited until she called him. Then appellant would lift W.B. off the toilet, wait until W.B. pulled up her panties, then help get her and the walker out of the bathroom. Appellant testified that he never took naps with W.B. or touched her breasts or vagina over her clothes. Appellant took care of W.B. after she exited the school bus only “two or three times” because Dolores was not working full-time hours at that time. Appellant testified that W.B. wanted to move to Commerce with her other grandparents because they had more money and could do things for her that he could not. Appellant did not have a good relationship with Angela and believed Angela coerced W.B. into making the allegations of sexual abuse.
Applicable Law
 
        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).
        To obtain a conviction for aggravated sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly penetrated the female sexual organ of W.B., a child under the age of fourteen, by his finger. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2007). The State could prove penetration by circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990). To obtain a conviction for indecency with a child, the State was required to prove beyond a reasonable doubt that appellant, with intent to arouse or gratify his own sexual desire, intentionally and knowingly engaged in sexual contact with W.B., a child younger than fourteen years and not his spouse, by touching W.B.'s breast with his hand. See Tex. Penal Code Ann. § 21.11(a) (Vernon 2003). The testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
Discussion
 
        Appellant argues that the evidence is factually insufficient because W.B. delayed her outcry of the alleged acts for ten years, and her motivation in delaying the outcry is questionable. Appellant asserts that W.B.'s testimony was not credible while his own testimony shows he did not sexually assault W.B. The State responds that the evidence is factually sufficient to support appellant's convictions.         Both Rule and Schultz testified that it is common for a victim of child sexual abuse to delay outcry for years due to fear, embarrassment, or concerns about what may happen to the family. W.B. testified that she was afraid appellant would hurt Dolores and was also afraid of hurting Dolores because she knew Dolores loved appellant. W.B. testified that while appellant helped her use the toilet, he would wipe her and insert his finger in her vagina. W.B. testified that this occurred over fifty times while she lived with appellant. W.B. testified that appellant also rubbed her breasts and vagina over her clothing while she napped after school.
        Appellant denied napping with W.B., touching her breasts or vagina over her clothes, and putting his finger in W.B.'s vagina. Appellant testified that he only took W.B. to the bathroom a few times and that he only helped her get her walker in and out of the room and lifted W.B. on and off the toilet. Appellant claimed he never pulled down W.B.'s panties for her and that he always waited in the living room while W.B. used the bathroom.
        It was the jury's function to evaluate the credibility of the witnesses and the evidence. See Lancon, 2008 WL 2081638, at *5. We must afford due deference to a jury's determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Viewed under the proper standards, we conclude the evidence is factually sufficient to support appellant's convictions for aggravated sexual assault of a child and indecency with a child. See Roberts, 220 S.W.3d at 524; Tear v. State, 74 S.W.3d at 560. We resolve appellant's first issue against him.
        In his second issue, appellant argues that the judgment in cause number 05-07-00869-CR should be modified because it was not signed by the trial judge. We have received a supplemental record containing a copy of the original judgment that was signed by the trial judge. Thus, appellant's second issue is moot.
        We affirm the trial court's judgment in each case.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070868F.U05