David James v. The State of Texas--Appeal from 12th District Court of Walker County

Opinion issued October 26, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01071-CR

__________

DAVID JAMES, Appellant

V.

THE STATE OF TEXAS, Appellees

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 21928

MEMORANDUM OPINION

A jury found appellant, David James, guilty of the offense of aggravated sexual assault of a child // and assessed punishment at confinement for sixty years and a fine of $10,000. In two issues, appellant contends that the evidence is legally insufficient to support his conviction and that the trial court erred in excluding evidence of a sexual encounter between him and the complainant that allegedly occurred approximately one week prior to the offense.

We affirm.

Factual Background

Walker County Sheriff s Deputy Jaime Diaz testified that, in October 2002, he was dispatched to the complainant s home, where he met the thirteen-year-old complainant at 7:45 p.m. Several other relatives of the complainant and appellant were also present, including Eunice Upson and Iva Rigsby. The complainant, who was scared and in shock, told Diaz that appellant, his uncle, sexually assaulted him earlier that evening in appellant s bedroom in another uncle s trailer, which was located on the same piece of property as other trailers occupied by the complainant and other family members.

While Diaz was at the complainant s home, appellant called the home to determine why Diaz was there. The complainant s mother handed Diaz the telephone and told him that appellant was on the phone. Diaz identified himself to appellant and explained to appellant that he did not have to speak with him. Appellant then told Diaz that he did not force the complainant to perform oral sex on him, that he had taken medication and was confused, and that he was not sure what he did.

On cross-examination, after appellant s counsel handed Diaz a copy of his interview with Upson, Diaz agreed that Upson had told him that the assault occurred at approximately 10:30 p.m. on October 24, 2002. Diaz also agreed that this time conflicted with what the complainant had told him about the timing of the offense. However, Diaz also explained that it was possible that he did not correctly remember what the complainant had told him.

The complainant testified that one day in October 2002, he was at his uncle Richard s trailer waiting for his aunt to come home from work. Upson and appellant were also living in the trailer at the time. The complainant explained that while he was in Richard s bedroom, appellant was in the living room and Upson was asleep on the couch in the living room. Appellant called the complainant into the living room and asked the complainant to give him his medicine. When the complainant handed appellant his medicine, appellant told the complainant to sit on the couch by him. Appellant then told the complainant to suck it, and the complainant told appellant no. Appellant then told the complainant come on, its my birthday. Again, the complainant told him no, but appellant kept on pressuring. Appellant threatened to tell people stuff about [the complainant] that wasn t true, like that he was gay. Appellant then got [the complainant s] head, put [the complainant s] head in his lap, and told [the complainant] to suck it like a lollipop. Appellant then put his penis in the complainant s mouth. Appellant was moving a little and had his hands on the complainant s back. Appellant said that s it right there, and ejaculated in the complainant s mouth. When appellant told the complainant he was finished, he let the complainant up and told him not to tell anyone. The complainant then went to another trailer, and later told his uncle Anthony, his mother, and his father what had happened. The complainant testified that he felt used.

On cross-examination, the complainant stated that the assault probably happened between 11:00 p.m. and 1:00 a.m. He explained that on the day of the incident, a number of people, including appellant, were playing dominos at a family member s trailer, and that he had left that trailer around 11:00 p.m. to go to Richard s trailer. The complainant denied leading appellant from the dominos game to Richard s trailer. He also testified that the lights in the living room were off when the assault occurred.

Eunice Upson testified that in October 2002, he was staying at Richard s trailer along with appellant. One day between October 24 and October 26 2002, while he was asleep on the couch, Upson overheard appellant say something about a birthday present. Upson awoke, opened his eyes, and saw appellant and the complainant. Although the lights were off and Upson did not see appellant s penis in the complainant s mouth, Upson knew from the body part what was happening. Upson saw the complainant s head going up and down on appellant s private part and heard appellant tell the complainant to suck it like a popsicle. Upson wiped his eyes because he could not believe what was happening. Upson stated that after that . . . I know that he s talking to him in that kind of manner, sucking and all that . . . ejaculating in his mouth and all that . . . that s part of . . . what I seen.

Iva Rigsby, appellant s niece, testified that after the assault, she asked appellant why everybody was mad at him, and he told her because his penis was in [the complainant s] mouth. Appellant told Rigsby not to tell anyone, especially her brother, who was the complainant s father. Appellant explained to Rigsby that after he left a party where he had a few drinks, he took his medication and awoke to find that the complainant had appellant s pants down. When Rigsby asked appellant why he did not stop the complainant, appellant replied that [the complainant] was almost done. Appellant told her that it was a birthday present.

Appellant testified that on the evening of the offense, he was playing dominos and had a sip to drink. He explained that he is epileptic and that, after taking a sip of his drink, he began to sweat. The complainant led appellant back to Richard s trailer and put him on the couch, and appellant asked the complainant to bring him his medication and some water. Appellant took his medication and passed out after Upson had put two fans on him. Appellant awoke the following morning at approximately 3:00 or 4:00 a.m., and Upson told appellant about two epileptic seizures that appellant had suffered the night before. Appellant then got a drink of water, went back to sleep, and was awakened around 6:30 a.m. by the complainant s uncle, who was getting home from work and was knocking on the front door. Appellant opened the door and went back to sleep.

Appellant awoke later around 10:30 a.m. and Rigsby approached him and asked him about what had happened between him and the complainant. Rigsby did not let appellant finish what he was saying, and she left the trailer. Appellant stayed at Richard s trailer that day, and then went to the house of one of his other nieces. Appellant spoke with Rigsby on the telephone that night, and she told appellant that the police were at the complainant s house. Appellant told Rigsby that he did not do anything. Appellant then spoke to a police officer, who told him that he needed to surrender himself. Appellant testified that he did not force the complainant to perform oral sex on him.

On cross-examination, appellant stated that prior to the incident, he had been playing dominos with friends, fixed one drink of gin and grapefruit juice, and took only one swallow of that drink, which he did not finish. He explained that he takes his epilepsy medication twice a day and that his doctor had previously told him not to drink large amounts of alcohol while on medication. Appellant reiterated that the complainant led him back to Richard s trailer, that the complainant gave him his medication and he took it, and that he immediately passed out. Appellant denied having a conversation with Rigsby on the night of the offense, but stated that he spoke with her the morning after. Appellant said that he left Richard s trailer the next night because someone had threatened to kill him. Finally, appellant testified that the complainant, Rigsby, and Upson were lying and that he did not recall the incident in question.

Legal Sufficiency

In his first issue, appellant argues that the evidence is legally insufficient to support his conviction because he denied that he sexually assaulted the complainant and there is no physical evidence or biological evidence of a sexual assault having occurred.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the fact finder s judgment. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We note that the fact finder is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the mouth of a child by the sexual organ of the actor and the child is younger than fourteen years of age. Tex. Pen. Code Ann. 22.021(a)(1)(B)(ii), (2)(B) (Vernon Supp. 2005).

Here, the complainant testified that after appellant called him into the living room to give him his medicine, appellant told the complainant to sit on the couch by him and to suck it. Although the complainant told appellant no several times, appellant stated its my birthday and kept on pressuring the complainant. Appellant, after threatening to tell people stuff about [the complainant] that wasn t true, got [the complainant s] head, put [the complainant s] head in his lap, told [the complainant] to suck it like a lollipop, and put his penis in the complainant s mouth. After appellant ejaculated in the complainant s mouth and told the complainant he was finished, appellant let the complainant up and told the complainant not to tell anyone. We note that the testimony of a complainant, standing alone, is sufficient to support a conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990).

Additionally, Upson testified that he was asleep on the couch when he overheard appellant say something about a birthday present. Upson woke up, saw the complainant s head going up and down on appellant s private part, and heard appellant tell the complainant to suck it like a popsicle. Rigsby testified that appellant admitted to her that his penis had been in the complainant s mouth. Specifically, appellant told Rigsby that after he left a party, he took his medication and woke up to find that the complainant had his pants down and that he did not stop the complainant when he woke up because the complainant was almost done. Appellant also told Rigsby that it was a birthday present.

It is true that the State did not offer any physical or biological evidence at trial, and appellant did testify that he had passed out on the couch, denied that he had forced the complainant to perform oral sex, and stated that the complainant, Rigsby, and Upson were lying. However, the jury is the sole judge of the credibility of the witnesses at trial and it was free to accept the testimony of the complainant, Upson, and Rigsby and reject the testimony of appellant. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Viewing all the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant s conviction for the offense of aggravated sexual assault of a child.

We overrule appellant s first issue.

Prior Sexual Encounter

In his second issue, appellant contends that the trial court erred in excluding evidence of an alleged sexual encounter between appellant and the complainant that occurred approximately one week prior to the instant offense. Appellant asserts that the prior sexual encounter closely resembled the act alleged against appellant in the indictment and that evidence of this prior sexual encounter was relevant and was more probative than prejudicial.

We review a trial court s decision to exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101 02 (Tex. Crim. App. 1996). Therefore, we will not reverse a trial court as long as its ruling was within the zone of reasonable disagreement. Green, 934 S.W.2d at 102.

During appellant s direct-examination, appellant informed the trial court that he intended to testify regarding the extraneous incident. The basis of appellant s offer was to establish that the complainant had previously tried to perform oral sex on appellant and that appellant was under the influence of drugs and alcohol, was epileptic, and did not know what was happening at the time of the offense. The trial court conducted an in-camera hearing, in which appellant testified that in the week preceding the assault, he was in the restroom in Richard s trailer giving himself a sponge bath. The complainant knocked on the door and asked to use the restroom, and appellant let him into the restroom. Appellant stated that as he was getting dressed, the complainant went down on [him] and the complainant put [appellant s] private in [his] mouth. Appellant stated that he pushed the complainant away and asked him what he was doing. The complainant told appellant that he was going to give [appellant] some more later, and appellant told him no, you re not, go home.

The State argued that this evidence was inadmissible under Texas Rule of Evidence 412, which provides that [i]n a prosecution for . . . aggravated sexual assault . . . reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible. Tex. R. Evid. 412(a). Rule 412(b) further provides:

In a prosecution for . . . aggravated sexual assault . . . evidence of specific instances of an alleged victim s past sexual behavior is also not admissible, unless:

. . . .

(2) it is evidence:

(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;

(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;

(C) that relates to the motive or bias of the alleged victim;

(D) is admissible under Rule 609; or

(E) that is constitutionally required to be admitted; and

(3) its probative value outweighs the danger of unfair prejudice.

Id. No other evidence was presented at the in-camera hearing. At the conclusion of the hearing, the trial court ruled that appellant s testimony was not admissible and that its probative value did not outweigh the danger of unfair prejudice.

In his brief, appellant asserts that his testimony regarding the alleged prior sexual encounter should have been permitted under rule 412(b)(2)(B), which pertains to consent, and rule 412 (b)(2)(C), which pertains to motive and bias. In regard to rule 412(b)(2)(B), consent was not an issue relevant to appellant s guilt or innocence of the offense of aggravated sexual assault of a child and this testimony was not admissible under this exception. See Tex. Pen. Code Ann. 22.021(a)(1)(B)(ii); see also Reed v. State, 991 S.W.2d 354, 361 (Tex. App. Corpus Christi 1999, pet. ref d) ( Consent is not in issue where the charged offense is sexual assault of a child because a victim under age seventeen is legally incapable of consenting. ); Jones v. State, 789 S.W.2d 330, 332 (Tex. App. Houston [14th Dist.] 1990, pet. ref d) (same).

In regard to rule 412(b)(2)(C), appellant did not provide the trial court with any explanation regarding how the alleged prior sexual encounter would tend to show motive or bias by the complainant. Rather, appellant offered the testimony to establish that appellant did not know what was happening and that the complainant had previously voluntarily performed oral sex on appellant. Following the in-camera hearing, the State asserted that appellant had not made a showing of motive or bias. Although the trial court made findings on each of the exceptions in rule 412(b), including a finding that the evidence did not relate to motive or bias, the court specifically stated that appellant hasn t even said that. We agree that appellant did not present the trial court with any explanation regarding how the excluded testimony would tend to show motive or bias by the complainant, and appellant has failed to offer any additional explanation on appeal.

Accordingly, we hold that the trial court did not err in excluding the proffered testimony under rule 412(b). Thus, we need not address appellant s argument that the trial court further erred in concluding that the probative value of the proffered testimony did not outweigh its danger of unfair prejudice. See Tex. R. App. P. 47.1.

We overrule appellant s second issue.

Conclusion

We affirm the judgment of the trial court. All pending motions are denied.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

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