CHRISTOPHER LEE THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed September 10, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01034-CR
............................
CHRISTOPHER LEE THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 336th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 055204-336
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OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Lang-Miers
        A jury convicted Christopher Lee Thompson of aggravated sexual assault and assessed punishment at fourteen years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
 
        R.L., the complainant, is a resident on the behavior unit at the Mission Oaks Care Center (Mission Oaks). The unit includes individuals with Alzheimers and other issues. Alma Malone, a laundry worker at Mission Oaks, often returned residents' laundry to their rooms. On August 17, 2006, Malone returned laundry to R.L.'s room at about 9:00 p.m. The lights were on inside the room. When Malone opened the door, she saw appellant lying on top of R.L. Appellant immediately said, “[Y]ou won't believe me but she pulled me down on top of her.” Malone left the room and told the charge nurse what she had seen. The nurse called the police. After questioning, appellant was taken to the jail.
        Malone testified many of the beds on the behavior unit consisted of mattresses placed on the floor. This was done to keep residents from falling out of bed. When Malone entered the room, R.L. was lying on her back on the mattress with her legs spread apart. R.L. was not wearing any underwear. Appellant was on his knees between R.L.'s legs with his pants pulled down “around his butt.” Malone testified she did not see appellant penetrate R.L.'s sexual organ with his finger, but she saw appellant's left hand between R.L.'s legs.
        Suzanne Cookston, a licensed vocational nurse at Mission Oaks, testified appellant worked as a certified nursing assistant on the behavior unit, which was a locked unit. R.L. had been placed at Mission Oaks by Adult Protective Services, suffered from “alcoholic dementia,” and needed help walking, dressing, bathing, and using the bathroom. On August 17, 2006, Malone told Cookston she saw appellant “doing something” to R.L. Cookston instructed Malone to tell the other nurse who was on duty on another unit. When Cookston entered R.L.'s room, she saw R.L. sitting on the bed wearing only a top and no pants or underwear. Appellant was trying to cover R.L. with a blanket. Appellant said R.L. kept trying to get up without her clothes on. Cookston did not see any discarded clothing in the room. Appellant was “nervous, shaking, and sweating.” Cookston told appellant to leave the room. When Cookston asked R.L. what had happened, R.L. did not respond to the question and became agitated. Cookston took appellant to the dining area and told him to write out a statement about what he had been doing within the last hour. Appellant repeatedly said nothing happened. Cookston testified she had witnessed inappropriate “flirting eye contact” between appellant and R.L. prior to this incident.         Amie Luck worked with appellant on the behavior unit. Prior to this incident, Luck had seen appellant take R.L. into the employee's bathroom even though each resident had their own bathroom inside their room. The employee bathroom was the only bathroom on the unit that had a lock on the door. On one occasion, Luck saw appellant massaging R.L.'s back while R.L. sat in a wheelchair. Luck believed appellant exhibited inappropriate behavior beause the residents on the unit were “not mentally aware of things” and “were basically like a little kid.” Luck also saw appellant kiss R.L. on the cheek. Luck reported appellant's behavior to the nursing director.
        Detective Jeremy Cox talked with R.L. at Mission Oaks sometime after 10:00 p.m. Cox testified R.L. had “no grasp of what was going on.” After appellant was transported to the jail, Cox conducted a videotaped interview with appellant. Cox also obtained a search warrant for body hair and saliva samples from appellant. The videotaped interview was played to the jury. During the interview, appellant denied having any inappropriate contact with R.L. Appellant said he took R.L. to her room, got her to take off her pants, and told her to lie on the bed and go to sleep. R.L. said she was not sleepy and tried to get up. Appellant saw red marks around R.L.'s vagina and asked R.L. about them. Appellant was “squatting” between R.L.'s legs looking at the marks when R.L. grabbed appellant's shoulders and pulled him down on top of her. A laundry worker came into the room and saw him on top of R.L. Later during that same interview, appellant said he gives the residents hugs and kisses on the cheek to show them they are worth something. Appellant said he was “trying to give R.L. some affection, but he never hurt her.” Appellant said R.L. took off her pants, laid on the mattress, and asked him to “make love” to her. R.L. grabbed appellant's penis and his pants “slipped down.” Appellant also said he was looking at the red marks around R.L.'s vagina and probably touched them, but he did not insert his finger into R.L.'s vagina. Cox testified he considered appellant's statements made during the interview to be a confession.         Trisha Kacer testified she examined a sexual assault kit from R.L. and white underwear from appellant. A semen stain on the underwear matched appellant's DNA profile. There was no semen or DNA material matching appellant found from R.L.'s sexual assault kit.
        Two witnesses testified on appellant's behalf. Linda King testified she is the director of nursing at Mission Oaks, which has 108 residents. Appellant began employment at Mission Oaks in January 2006. R.L. became a resident in June or July 2006. On August 17, 2006, King received a call at home from one of the nurses who said a laundry worker had walked into R.L.'s room and found appellant lying on top of her. King instructed the nurse to take appellant to another room and hold him there. When King arrived at Mission Oaks, the administrator and police officers were already there. King began an internal investigation into the incident by asking appellant and all of the personnel on the unit at the time of the incident to provide written statements. King also talked to R.L., who said she was fine and wanted to go to sleep. King testified appellant had always provided good care to R.L. and the other residents, and R.L. would not do things for herself unless appellant was there to help her.
        Lori Teague testified she did not begin work as a social worker at Mission Oaks until October 2006, but she had previously worked for Adult Protective Services. Teague began working on R.L.'s case in May 2006. In June 2006, Teague placed R.L. at Mission Oaks because R.L. had no insurance to continue her stay at a hospital's mental health unit for alcohol detoxification. At that time, R.L. was “just a breathing body. She was not able to walk, talk, sit up, or make her needs known.” R.L.'s diagnosis was alcohol-induced dementia, which included symptoms of memory loss. Teague believed that in August 2006, R.L. would still have been in the condition of not being able to do anything for herself or protect herself from harm. At the time of trial, which was a year after the incident, R.L. had improved to the point where she could walk, feed and bathe herself, and verbally communicate, although she became confused at times. Teague testified that although R.L.'s condition has steadily improved, R.L. has not made an outcry about any type of sexual assault.
Applicable Law
 
        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, we view 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. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). 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, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To obtain a conviction for aggravated sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly penetrated the sexual organ of R.L., a disabled individual, by appellant's finger. See Tex. Penal Code Ann. § 22.021(a)(1)(A) (Vernon Supp. 2008). “Disabled individual” means a person older than fourteen years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect herself from harm or to provide food, shelter, or medical care for herself. Id. § 22.04(c)(3).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient to support the conviction because nothing shows he penetrated R.L.'s sexual organ by any means. Appellant asserts that because no one saw his finger penetrate R.L.'s sexual organ, and appellant repeatedly denied he had penetrated R.L.'s sexual organ, the jury was not rationally justified in finding appellant penetrated R.L.'s sexual organ with his finger. The State responds the evidence is legally and factually sufficient to support the jury's finding that appellant penetrated R.L.'s sexual organ with his finger.
        Penetration may be established through circumstantial evidence. See Villalon v. State, 791 S.W.2d 130, 133-34 (Tex. Crim. App. 1990). The slightest penetration is sufficient to uphold the conviction. See Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974). Additionally, a sexual assault victim need not testify as to penetration. See Villalon, 791 S.W.2d at 133.
        Here, the jury rationally could have inferred that appellant penetrated R.L.'s sexual organ based on the evidence presented. See id. at 133-34. Malone testified she saw appellant lying between R.L.'s legs while R.L. was naked from the waist down, and appellant's hand was between R.L.'s legs. During appellant's interview with Cox, appellant admitted he was “trying to give R.L. some affection,” but claimed R.L. grabbed his penis and pulled him down on top of her, and he was between her legs because he was looking at red marks around her vagina. It was the jury's function to evaluate the credibility of the witnesses and the evidence. See Lancon, 253 S.W.3d at 705. We must afford due deference to a jury's determination. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied 128 S. Ct. 87 (U.S. 2007). 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).
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We resolve appellant's two issues against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071034F.U05