Boston, Rozele Eugene v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmedand Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00811-CR

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ROZELE EUGENE BOSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris  County, Texas

Trial Court Cause No. 865,289

O P I N I O N

  Appellant, Rozele Eugene Boston, was convicted of aggravated sexual assault and sentenced to 80 years in prison and a $1 fine. In his two points of error, appellant argues the evidence is legally and factually insufficient to establish sexual assault.

  Complainant, an 85-year old woman, testified that she woke up in the early morning hours of August 21, 2000 to find an unknown male in her bathroom who said he was looking for money. When complainant told him she had no money, he replied,  AYoujust well get yourself fixed for being raped,@  and knocked her to the floor. Complainant was rendered unconscious, but not before she activated her Lifeline alert button. Alerted by the Lifeline call, complainant=s son went to her house, where he found her on the floor with her gown pulled up, both legs covered in blood.

  In investigating the scene, Houston police detectives found a pair of bloodstained men=s shorts containing a note and a wallet with appellant=s identification. The bloodstains matched appellant=s DNA and the note had appellant=s partial fingerprint on it. A black sports logo shirt was also found at the scene. Appellant=s girlfriend identified the shorts and shirt as those appellant had been wearing earlier that day.

  Appellant was arrested later that morning for public intoxication. The arresting officer took appellant=s clothing, which included underwear with four bloodstains on it. The bloodstains were matched to both appellant=s and complainant=s DNA, including a bloodstain located on the interior crotch area.

  At the hospital, an emergency room physician examined complainant and diagnosed a subdural hematoma. The physician testified that it is common for people with subdural hematomas not to remember how they received the injury. A few hours later during a sexual assault examination, a nurse noted a fresh purplish bruise on the exterior of complainant=s sexual organ, and other fresh bruises deeper down inside, visible only with a speculum. The nurse testified the bruises were consistent with a sexual assault, but was unable to conclusively state they were caused by penetration, as kicking or punching would have caused a similar injury in a woman of the complainant=s age. No semen was found in samples taken from complainant during the examination. However, the nurse stated that because of the time lag between complainant=s arrival at the hospital and her sexual assault examination, some physical evidence could have been lost.

  Appellant=s sole complaint is that there was insufficient evidence of penetration. We follow the usual standards of review. Wesbrookv. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). To support a conviction of aggravated sexual assault, the State must prove appellant intentionally or knowingly caused the penetration of the female sexual organ of another person by any means, without that person=s consent, if the victim is 65 years of age or older. Tex. Pen. Code Ann.  ''  22.021 (a) (1) (A), (2)(C). Circumstantial evidence suffices to establish penetration even if the victim does not testify explicitly that penetration did occur. Villalonv. State, 791 S.W.2d. 130, 133 (Tex. Crim. App. 1990); Jones v. State, 817 S.W.2d 854, 856-57 (Tex. App.CHouston [1st Dist.] 1991, no pet.). Courts have found evidence legally and factually sufficient to support a conviction of sexual assault absent physical proof of penetration. In the Matter of D.T.C., 30 S.W.3d 43, 51(Tex. App.CHouston [14th Dist.] 2000, no pet.); Floyd v. State, 959 S.W.2d 706, 709 (Tex. App.CFort Worth 1998, no pet.).

  Appellant claims there is not enough evidence to support the verdict because none of his semen or sperm was found on the complainant, and the nurse could not definitively state penetration was the cause of complainant=s injuries. However, appellant=s shorts were found at complainant=s house after the assault occurred, and bloodstains with complainant=s DNA on them were found on the interior crotch area of appellant=s underwear. The nurse testified that complainant=s injuries were consistent with those caused by penetration. And the complainant testified that appellant stated it was his intent to rape her. In evaluating the sufficiency of the evidence, we will not intrude upon the jury=s role as the sole judge of the credibility of witness testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). A rational trier of fact could find the essential elements of aggravated sexual assault beyond a reasonable doubt, and proof of sexual assault is not so weak as to be outweighed by the evidence to the contrary, nor does it undermine confidence in the jury=s determination of complainant=s credibility. Appellant=s two points of error are overruled, and the judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish CTex. R. App. P. 47.3(b).