Charles Edward Williams v. The State of Texas--Appeal from 248th District Court of Harris County

Opinion issued June 16, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00182-CR

CHARLES EDWARD WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 962,080

MEMORANDUM OPINION

Charles Edward Williams, appellant, pleaded not guilty to aggravated sexual assault. After appellant waived his right to a trial by jury, the judge found him guilty and affirmatively answered the special issue submitted on the issue of use of a deadly weapon. The case was enhanced by a prior felony conviction for burglary of a habitation. The judge assessed punishment at 75 years confinement. In two points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction. We affirm.

BACKGROUND

On the afternoon of March 11, 2003, the complainant was walking when she was pulled by the sleeve of her jacket from behind and felt an object poking her in the middle of her back. The man pulling her told her not to look at him, to close her eyes, and to get in the car. The man forced her into a car and onto the floor behind the driver s seat, while appellant started to drive the car.

Eventually, the man that forced the complainant into the car asked appellant to let him out. As he exited the car, the man pulled the complainant off the floor, while pointing a gun at her, and put her in the front seat with appellant. When she was placed in the front seat, the complainant saw appellant s face and saw that he was pointing a silver and black gun at her. As he started the car again, appellant forced the complainant to lay her head in his lap. Appellant stopped the car and demanded that the complainant unbutton her pants and pull them down or he would kill her. Although the complainant began to do so after initially hesitating, appellant reached over and forced her pants down. He then opened the glove compartment, pulled out a few razors and shaving cream, and placed his silver and black gun in the glove compartment. He then retrieved a brown and black pistol from under the seat and loaded it. The complainant testified that appellant pointed the pistol at her and threatened her with it throughout the assault. Appellant took the complainant s cell phone, her mechanical phone book, address book, windbreaker, ring, identification card, social security card, and her Lone Star card. Appellant demanded that the complainant shave her pubic hair, but then took the razor from her and began to shave her himself.

Before began driving again, appellant unzipped his pants and pushed the complainant s head down. He demanded that the complainant perform oral sex on him. He then grabbed the complainant by the back of the head and forced her mouth down on him. Appellant ejaculated into the complainant s mouth and wiped himself and forced her to wipe her mouth with her jacket. When the complainant looked at his face, appellant hit her on the side of the head with his gun. Appellant then told her to get out of the car, unbuckled her seat belt, and opened the door for her. The complainant crawled out of the car and, as she passed in front of the car, she noticed it had no front license plate. The complainant ran to a nearby house and notified the police. The complainant described her assailant to Officer Crawford of the Houston Police Department as a black male with long sideburns and some gold teeth in his mouth. She also told Crawford that her assailant had a red tooth in his upper row of teeth and a blue tooth on his bottom row. Two days later, the complainant gave a written statement to Sergeant Morgan about what had happened to her.

On April 1, 2003, Houston Police Officer Kutach attempted to pull over appellant in a green 1993 Ford Tempo for not having a front license plate displayed. Appellant stopped the car twice, backed up, and then sped up until another officer backed appellant s car into a driveway. As appellant got out of the car, Kutach saw a gun come out from under appellant s leg and hit the car s floorboard. Kutach got appellant on the ground, but when he attempted to holster his weapon, appellant tried to run. Kutach recovered a silver and black semiautomatic pistol, which he testified was a deadly weapon. Kutach also noticed that appellant had a grille on his front teeth that had blue coloring on it. When Kutach saw appellant s grille, it triggered something in his mind that resulted in making a phone call to the police department s homicide division.

After Sergeant Morgan talked to Kutach and his partner about the man they had arrested, Morgan tried to put together a live line-up, but appellant refused to participate. Instead, Morgan took a photograph of appellant and put together a photo spread. Approximately a month after the incident, the complainant picked appellant out of this photo spread. After she identified appellant, the complainant asked Morgan if he had a picture of appellant s teeth, but he did not. The complainant later explained that she asked for the picture because Morgan had a hard time understanding how the teeth looked.

On April 7, 2003, Officer Martinez was asked to examine the green 1993 Ford Tempo that appellant was driving when he was arrested. Martinez collected multiple hair samples from the car, but was unable to lift any useable fingerprints. None of the DNA profiles from the hair samples matched the DNA swab from the complainant.

At trial, the complainant positively identified appellant as the man who sexually assaulted her. She said that her assailant had a bar that covered three or four of this teeth that was gold with blue and red in it. Appellant was asked to show his teeth to the complainant while she testified. The complainant testified that appellant s teeth were the same as she remembered, except that at the time of the assault, his teeth had a red bar and a blue bar on them.

The complainant also testified that the car in which she was sexually assaulted was a dark color with a light brown interior that looked like the color of peanut butter. She testified that the interior of the car in which appellant was arrested looked like the interior of the car she was sexually assaulted in, except that the car in which appellant was arrested had a radio.

DISCUSSION

Legal Sufficiency

In his first point of error, appellant asserts that the evidence is legally insufficient to prove his identity as the assailant that committed aggravated sexual assault. Appellant contends the evidence is legally insufficient to prove that he committed the offense of aggravated sexual assault because (1) the complainant s description of her assailant did not match appellant; (2) the complainant s description of the vehicle in which she was assaulted did not match the vehicle in which appellant was arrested; and (3) that vehicle contained no evidence that the complainant had ever been in it.

A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App. Houston [1st Dist.] 1997, no pet.). As the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, the trier of fact may believe or disbelieve all or any part of a witness s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App. Houston [1st Dist.] 2002, no pet.).

A person commits the offense of aggravated sexual assault if that person (1) while acting intentionally or knowingly; (2) causes the sexual organ of another person to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; (3) without that person s consent; and (4) uses or exhibits a deadly weapon in the course of the same criminal episode. Tex. Pen. Code Ann. 22.021(a)(1)(A)(iii) and (a)(2)(A)(iv) (Vernon 2003).

When no jury is present, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Bridge v. State, 726 S.W.2d 558, 563 (Tex. Crim. App. 1986). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The trier of fact may believe or disbelieve all or any part of a witness s testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984); Sims v. State, 84 S.W.3d 768, 773 (Tex. App. Dallas 2002, pet. ref d).

A conviction for aggravated sexual assault is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005). Evidence as to the identity of the perpetrator of an offense may be proved by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).

The evidence shows that the complainant identified appellant as the man who sexually assaulted her. The complainant testified that she was forced by a man into a car, at which point the man kept a gun pointed at her back and the back of her head. When this man got out of the car, he dragged the complainant into the front seat next to appellant, who was driving the car. Appellant forced the complainant s mouth down onto appellant s penis and forced the complainant to perform oral sex on him. On the day of the offense, the complainant told the police that she had been sexually assaulted. The complainant later identified appellant as the man who assaulted her from a photo spread. At trial, the complainant again identified appellant. The complainant testified that, even though she had asked to see a picture of appellant s teeth after she identified him from the photo spread, she was quite sure [about her identification of appellant] with or without the teeth. She explained that she only asked to see appellant s teeth because she had a hard time describing appellant s teeth to Sergeant Morgan.

Appellant argues that the evidence is insufficient because the complainantqualified her identification of appellant by stating that her alleged attacker had a red grille on his bottom teeth, was thinner, and was not as clean shaven as appellant appeared in court. Appellant also argues that the complainant s description of the car in which she was sexually assaulted differed from the description of the 1993 Ford Tempo that appellant was driving at the time of his arrest. However, the determination of what weight to give testimonial evidence is within the sole province of the trier of fact, as it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Thus, the trier of fact was free to believe all or any part of the testimony of the State s witnesses, and disbelieve all or any part of the witness testimony. A court of appeals must show deference to such a finding. Id. at 409. Under the circumstances, we properly leave to the trier of fact the weight to give complainant s testimony. See Sandoval v. State, 52 S.W.3d 851, 855 (Tex. App. Houston [1st Dist.] 2001, pet. ref d).

Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of aggravated sexual assault. We hold that the evidence was legally sufficient to support appellant s conviction. Accordingly, we overrule appellant s first point of error.

Factual Sufficiency

In his second point of error, appellant asserts that the evidence was factually insufficient to support his conviction for aggravated sexual assault // because the complainant s testimony was not reliable.

We review the factual sufficiency of the evidence by reviewing all of the evidence neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the trier of fact. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Court of Criminal Appeals discussed the factual-sufficiency standard as follows:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). We must consider the most important evidence that appellant claims undermines the trier of fact s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant contends the evidence is factually insufficient to prove that he committed the offense because (1) the complainant testified that the grille in her assailant s mouth was different in content and color than that in appellant s mouth at trial; (2) the complainant testified that appellant s musculature and body were not the same as those of her assailant; (3) the complainant testified that she did not remember seeing appellant s tattoos on her assailant s arms; (4) the complainant testified that the vehicle used during the offense did not have a radio, but the vehicle in which appellant was arrested did; (5) the complainant qualified her identification of appellant from the photo spread by requesting to see his teeth; (6) the complainanttestified that she did not identify the gun of the person who pushed her into the vehicle, but at trial she identified the gun as being black; and (7) Michelle Randall, appellant s girlfriend, testified that appellant s grille is permanent and he did not have a red grille on his bottom teeth at the time of his arrest. However, a decision is not clearly wrong and unjust merely because the trier of fact resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d at 410.

Although her description of her assailant differed slightly from appellant s appearance at trial, the complainant positively identified appellant as the man who sexually assaulted her from a photo spread shortly after the incident. The complainant again identified appellant as her assailant at trial. The complainant testified that appellant held a gun to her head and threatened to kill her while sexually assaulting her.

After examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the trier of fact s determination, nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The evidence was factually sufficient to show that appellant committed the offense of aggravated sexual assault. Accordingly, we overrule appellant s second point of error.

CONCLUSION

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).