FERNANDO MALLOU, M.D., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed April 30, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00073-CR
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FERNANDO MALLOU, M.D., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-71821-TQ
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OPINION
Before Justices Richter, Lang-Miers, and Myers
Opinion By Justice Myers
        A jury convicted Fernando Mallou, M.D. of sexual assault and assessed punishment at three years' imprisonment and a $10,000 fine. Because the jury recommended probation, the trial court placed appellant on ten years' community supervision. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Background
 
        In October 2006, N.R., the complainant, was in a partnership with Dr. Greg Bunting to operate the Injury Assistance Center, a chiropractic clinic. They had two clinic locations, one in Pleasant Grove and one in Irving. N.R. managed the offices and also assisted Bunting with therapy on some of the patients. Because chiropractors cannot write prescriptions, they needed a medical doctor to provide pain evaluation and management for their patients. N.R. and Bunting contracted with appellant to provide those services and to write prescriptions.
        At trial, N.R. testified she and Bunting hired appellant about three weeks before appellant sexually assaulted her. According to N.R., she had interacted with appellant only a few times prior to the sexual assault. The first time N.R. met appellant was when he came into the clinic for an interview. On the second time she saw appellant, she showed appellant how to use the recording equipment for dictating patient notes. Appellant was “very friendly,” but behaved in a professional manner. On another occasion when she was working in the Irving clinic, appellant came behind her while she sat at one of the desks and massaged her back briefly. N.R. and the receptionist sitting next to her looked at one another, but neither said anything. N.R. testified she was not alarmed or scared of appellant, but she felt a “little uncomfortable” when he rubbed her back.
        On October 4, 2006, the date of the sexual assault, N.R. had scheduled several patients to see appellant at the Pleasant Grove clinic. Appellant arrived at 10:00 a.m. and began seeing patients. When the last patient had gone, only N.R. and appellant were inside the clinic. N.R. and appellant went to the lunchroom and talked while they waited for two patients to arrive. While they talked and ate yogurt, N.R. mentioned she felt she needed to lose weight, and she complained about having back pain. Appellant offered to examine her back. Because N.R. had only been examined by a chiropractor and not a medical doctor, she agreed to be examined, hoping appellant would write a prescription for a muscle relaxer or some type of pain medication. N.R. and appellant went into a “rehab” room located next to the lunchroom. Appellant instructed N.R. to lay face-down on a “bed” the clinic used for massage therapy. The bed, which was a leather-covered table that stood about “waist-high,” was against one wall while a treadmill and other equipment was against the opposite wall. After N.R. lay face-down on the bed, appellant began pushing on her back. Appellant continued moving his hands lower and lower until he put his hands “like, in between my butt.” N.R. testified she wore “hospital scrubs” daily at the clinic, and appellant rubbed her on top of her clothing. N.R. testified she felt uncomfortable. N.R. said, “[I]t doesn't hurt that low.” Appellant told her to relax because “it's all connected.” Appellant instructed N.R. to turn over, then helped her roll over onto her back. N.R.'s left side was against the wall and her right side was next to appellant. As N.R. lay face-up, appellant began pressing on her stomach, telling her to “just relax.” Appellant placed N.R.'s left arm against the wall and held it there with his left hand; he pressed his legs against N.R.'s right arm, holding it in place on the table. Then appellant put his right hand down into N.R.'s pants. N.R. told appellant to stop. Appellant told her again to “just relax.” Appellant put his hand inside N.R.'s underwear, then put his finger inside her vagina. N.R. testified she could not move or get up because part of appellant's body was “over her.” Although N.R. repeatedly told appellant to stop, he put his hand under N.R.'s shirt and bra and fondled her breasts, stating he was “feeling for nodules.” Appellant also put his tongue in N.R.'s mouth.
        N.R. testified that throughout the sexual assault, appellant made noises “like he's enjoying it.” After appellant put his tongue into N.R.'s mouth, appellant “breathed in a certain way” that made N.R. believe he had ejaculated. Then appellant helped N.R. get up from the table. N.R. went to a sink that was in the room, washed out her mouth, then went back to the front office area. N.R. put a digital recorder into her pocket and waited for appellant to come out to the front area. N.R. testified she intended to record appellant admitting what he had just done to her. Although N.R. was shocked about what had happened, she tried to stay calm so she could get appellant to talk to her and because she had to deal with a patient who came into the clinic. When appellant came back into the front area, N.R. recorded their conversation. An audiotape of that conversation was admitted into evidence and played to the jury. N.R. testified that after she recorded appellant apologizing to her, she told him she had to go to the Irving clinic. When she got into her car, N.R. called Bunting and told him that appellant has sexually assaulted her. After talking briefly with Bunting, N.R. called her fiancé and told him that appellant had sexually assaulted her. Her fiancé told N.R. to go home and he would meet her there. When she got home, she and her fiancé listened to the audio recording together. The next day, appellant called N.R. and said he left his glasses in the Pleasant Grove office. N.R. told appellant to never call her again or come to any of their locations, then she hung up the telephone. N.R. had appellant's glasses delivered to their Irving clinic. N.R. later learned that appellant had written a prescription for diet pills and left it for her at the Irving location. N.R. filled the prescription “four or five times” because she wanted to lose weight, but she did not contact appellant at any time after the sexual assault.
        N.R. testified she did not call the police immediately because she did not know exactly what to do since appellant had a working relationship with Bunting and with her fiancé's employer, a personal injury lawyer. N.R. also wanted to wait to hear what advice her fiancé's employer could give her about how to handle the situation. After three weeks, N.R. got tired of waiting for the lawyer's advice and contacted the police about the sexual assault. Police officers came to the Pleasant Grove clinic and took photographs of the facility. N.R. also later talked with a detective.
        Dr. Greg Bunting testified that as a chiropractor, he worked with lawyers who practice worker's compensation, personal injury, and medical malpractice. Bunting hired N.R. in September, 1999, to handle medical billing and collections. Her responsibilities changed as his chiropractic practice grew, and eventually she became the manager of all of his clinics. Eventually, N.R. ceased to be an employee when she became a partner in the Pleasant Grove clinic. In August 2006, Bunting hired appellant on a contract basis to prescribe pain medications to some of his patients. On October 4, 2006, Bunting worked at the Irving clinic while N.R. worked at the Pleasant Grove clinic. In the afternoon, Bunting answered a call from N.R., who was crying and “very distraught.” N.R. said she had asked appellant to examine her back and appellant had held her down, tried to kiss her, and put his hands down into her pants. Bunting told the jury that N.R. had severe back pain to the point where at times she could not stand up. Bunting testified he told N.R. that if she needed to call the police, she should do that. Bunting also told N.R. to lock up the clinic and go home. The next day, Bunting insisted that N.R. meet with him in person at the Irving clinic. When he talked with N.R. at the clinic, N.R. appeared “very angry,” and said she felt betrayed by appellant because she asked him to examine her back as a medical doctor. N.R. said appellant had “flipped her over and came across the exam table and tried to kiss her,” then appellant held her down, and his hand went into her pants and into her vaginal area. Bunting told N.R. that if she believed a crime had been committed, she should call the police.
        Fabian DeLaLuz, N.R.'s fiancé, testified he works in his cousin's law firm, a personal injury firm. When N.R. mentioned she and Bunting needed to contract with a medical doctor, DeLaLuz gave her the names of three doctors, including appellant. DeLaLuz had never met appellant and did not know him, but he obtained appellant's name from office files. On the afternoon of October 4, 2006, N.R. called him and said she had been attacked by the doctor in the office. N.R. sounded “shaky,” and was “very upset.” N.R. said she was “held down by the doctor and groped.” DeLaLuz told N.R. to go home and he would meet her there. When he arrived at home, N.R. was sitting on the bed “jittery, shaky, and crying.” N.R. said she asked appellant if he could adjust her back or do something for her back pain. She lay face-down on one of the beds they have there and appellant started massaging her back. Appellant went “towards her butt,” and she did not feel comfortable with it. N.R. said she turned over and appellant proceeded to hold her down and reach between her legs. N.R. said appellant also fondled her breasts. DeLaLuz testified he confronted appellant over the telephone the next day. Appellant acted “nonchalant,” and said, “[H]ey, you know what, she's a beautiful woman; you're a lucky man. I massaged her back 'cause you don't do it, and I kissed her twice.” When DeLaLuz told appellant that N.R. said appellant had held her down and groped her, appellant said “he's a grown man, an older man” and “he's not gonna cry about anything, and that she liked it.” Appellant said N.R. should do “what she wanted because he had not done anything wrong.” Then appellant said he was busy and hung up the telephone. DeLaLuz talked with his cousin about the situation, but never got any definitive advice from him. DeLaLuz testified he did not call the police because he believed it was N.R.'s decision whether to contact them.
        Dallas police officer Stephen St. Clair answered the sexual assault call at the Pleasant Grove clinic. St. Clair testified he talked with N.R., who said she had been sexually assaulted by a doctor at the clinic. N.R. was dressed in scrubs, and she appeared to be “worried and fearful.” St. Clair completed a report, then passed the case to an investigator.
        Detective B.J. Watkins was assigned N.R.'s sexual assault case in November, 2006. Watkins testified that appellant was the named suspect. Watkins met with N.R. on December 13, 2005, and took possession of a digital recorder that N.R. said she had used to record a conversation with appellant. Watkins looked at the room where the sexual assault had occurred. There was a leather- covered massage table that stood between thirty-six and thirty-eight inches high. Watkins testified that based upon his fourteen years of experience as a sexual assault investigator, he believed it was “entirely plausible” that the offense happened in the manner in which N.R. described it. Watkins said the fact that N.R. made a recording of her conversation with appellant after the sexual assault was not “strange,” and in cases where there is some type of relationship between the victim and the suspect, it is common for a victim to delay reporting a sexual assault.
        Stephen Wilson, M.D., an orthopedic surgeon, testified he has known appellant for twenty- five years and has treated appellant for about ten years. Appellant has a “progressive condition” that affects the flexibility and strength of his hands. The condition decreases the mobility and strength of grasping. Appellant also had a “heel injury” within the last five years that decreased his ability to walk and stand. During cross-examination by the prosecutor, Wilson testified appellant's heel injury occurred in December 2006, and he performed surgery on appellant's right hand in the spring of 2007. Wilson admitted that appellant's hand condition did not prevent him from seeing patients, and appellant could still reach out and touch things with his hands. Wilson also testified there was nothing in appellant's condition that would prevent him from leaning over or putting his weight on an individual prior to December 2006.
        Appellant testified that his practice is limited to pain management, and he works with various chiropractors, using their facilities to recommend pain management for their patients. Appellant denied that he put his hand down N.R.'s pants or into her underwear or put his finger into N.R.'s vagina. On October 4, 2006, appellant worked in Bunting's clinic seeing several patients at the Pleasant Grove location. After the last patient had left, N.R. asked appellant to stay because there were two more patients scheduled to come into the clinic. While he waited, he went into a lunchroom with N.R. and had yogurt. N.R. sounded “depressed and abandoned” when they talked. N.R. asked him to give her a prescription for an appetite suppressant because she wanted to lose weight. Appellant testified that N.R. never mentioned back pain, she said she had shoulder pain. N.R. asked him to “do more rubbing on her shoulders.” N.R. took appellant to another room and lay on a chiropractic table face down. Appellant rubbed her shoulders and back for ten to fifteen minutes, then asked N.R. to turn over. Appellant helped her turn over onto her back, then he continued rubbing her shoulders. According to appellant, N.R. was happy and smiling, and he believed she enjoyed the back rub. Appellant said his face “got a little bit close” to N.R.'s face because he was “projected forward,” and he attempted to kiss N.R. When N.R. turned her face away, he realized he had the wrong impression. Then, appellant began massaging N.R.'s stomach. N.R. “put on a sour face” and said, “[T]his is unprofessional.” Appellant immediately stopped and helped N.R. get off the table. They both went to the reception area, where N.R. talked to someone on the telephone. N.R. then told appellant the patient they were waiting for was not coming.
        Appellant admitted he apologized to N.R., but said it was because “I didn't want to gross the lady. I had to work with her.” Appellant said he apologized because he had misinterpreted N.R.'s actions, and he apologized “for upsetting her for whatever reason it was.” Appellant testified he got down on his knees when he apologized to N.R. only because “that a gallantry . . . we do things like [that] when we talk to ladies.” Appellant said he and N.R. left the clinic at the same time, and N.R. even initiated a “friendly hug” in the parking lot.
Discussion
 
        In a single issue, appellant contends the evidence is factually insufficient because N.R.'s testimony was not credible. Appellant asserts nothing shows an offense actually occurred except for N.R.'s testimony, she did not confront him about an alleged sexual assault, and she waited to report the alleged sexual assault until she got legal advice from her fiancé's employer.
        In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To obtain a conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the female sexual organ of N.R., without her consent, by appellant's finger. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2009). A conviction for sexual assault is supportable on the uncorroborated testimony of the victim if said victim informed any person, other than the accused, of the alleged offense within one year after the alleged offense date. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005).
        The jury heard N.R.'s testimony that appellant held her down, put his hand down her pants and inside her underwear, then put his finger inside her vagina. After the sexual assault had occurred, N.R. recorded appellant's apology to her. N.R. told Bunting and DeLaLuz about the sexual assault the same day that it had occurred. The jury also heard appellant's testimony that he only attempted to kiss N.R., and he never put his hand in her pants or underwear, and he did not put his finger inside N.R.'s vagina. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's verdict. See Laster, 275 S.W.3d at 518. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090073F.P05