Harkins, Rick Allen v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Opinion filed June 27, 2002

Affirmedand Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-00708-CR

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RICK ALLEN HARKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 813,238

O P I N I O N

Appellant, Rick Allen Harkins, was charged by indictment with aggravated sexual assault of a child. Appellant pleaded not guilty; a jury found appellant guilty and assessed punishment at confinement for thirty years in the Institutional division of the Texas Department of Criminal Justice. In three points of error, appellant contends: (1) the trial court erred in prohibiting introduction of evidence that someone other than appellant sexually assaulted the complainant, in violation of his federal constitutional right to compulsory process; (2) the evidence was legally insufficient to support the conviction; and (3) the evidence was factually insufficient to support the conviction. We affirm.

FACTUAL BACKGROUND

Katherine McKean, appellant=s step-daughter, spoke to her son, nephew, and seven year old niece, B.S., about appellant=s fifteen year old son, Thomas, smoking cigarettes. During this conversation, complainant, B.S., informed her aunt that Thomas had engaged in sexual misconduct with her. When asked why she kept this information to herself, she responded that she told appellant, her grandfather. McKean asked B.S. if her grandfather did anything to her, and B.S. responded yes.

B.S. testified that, while living with her grandparents, she often crawled into bed between them in the middle of the night. Her grandfather slept without clothing. Although her grandparents were usually sleeping when she crawled into their bed, her grandfather would sometimes do Awrong things@ to her by touching her in the Awrong place.@ He would touch her in-between her legs, sometimes under her clothes, with his hand. He would sometimes have her touch him on his Aprivate part.@ Further, her grandfather would have his Aprivate part@ touch her Aprivate part.@ Sometimes her grandfather would do wrong things to her while her grandmother was at work. On at least one occasion, her grandfather Agot on top@ of her and had his private touch her private, but did not penetrate her. He told her not to tell anyone or they would both be in trouble.

Appellant testified in his defense. He admitted that he always slept naked in bed, but denied doing anything sexual with B.S. Appellant thought law enforcement might get involved after his wife told him about B.S.=s statements. In addition, appellant confirmed that he initially left town a day or two after his wife spoke to him about B.S.

DISCUSSION

I. Sufficiency of the Evidence

A. Standards of Review

In his second and third points of error appellant contends that the evidence at trial was legally and factually insufficient to support his conviction for aggravated sexual assault of a child. We apply different standards when reviewing the evidence for factual and legal sufficiency. When reviewing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). On appeal, this court does not reevaluate the weight and credibility of the evidence, but we consider only whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

To determine factual sufficiency, we view the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We must review the evidence weighed by the jury tending to prove the existence of the elemental fact in dispute, and compare it to the evidence tending to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The appellate court may find either that the State=s proof of guilt was so obviously weak as to undermine confidence in the jury=s determination, or that the finding of guilt was against the great weight and preponderance of the evidence. Id. at 11. When defendant proffers contrary evidence, we consider whether the proof of guilt, although adequate if taken alone, is greatly outweighed by defendant=s offered evidence. Id. We may disagree with the jury=s decision, even if probative evidence exists that supports the verdict. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). However, a factual sufficiency review must be appropriately deferential to avoid substituting our judgment for the fact finder=s. Id. at 648. We are not free to reweigh the evidence, but must exercise our jurisdiction only to prevent a manifestly unjust result. Id.

B. Legal Sufficiency

In his second point of error, appellant alleges the evidence at trial was legally insufficient to support the jury=s verdict because the State failed to prove all the essential elements of aggravated sexual assault[1]. Specifically, he argues the State failed to prove that appellant caused his sexual organ to contact the complainant=s sexual organ as specifically alleged in the indictment. See Roberts v. State, 513 S.W.2d 870, 871 (Tex. Crim. App. 1974) (stating, AIt is a cardinal principle of law that all essential averments in an indictment must be proved as alleged@); Boyette v. State, 632 S.W.2d 915, 917 (Tex. App.CHouston [14th Dist.] 1982, pet. ref=d) (stating same).

To secure a conviction for aggravated sexual assault of a child, the State must prove beyond a reasonable doubt that appellant (1) intentionally or knowingly, (2) caused the sexual organ of B.S. to contact the sexual organ of appellant, and (3) that B.S. was younger than fourteen years of age. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(iii) and (a)(2)(B) (Vernon Supp. 2002). In the instant case, appellant argues that because B.S. referred to both her chest and vagina as her Aprivate parts,@ it was impossible to determine to which she was referring in her testimony regarding contact with appellant=s Aprivate parts.@ Thus, her testimony is conflicting in that it suggests appellant may have touched only one of B.S.=s Aprivate parts,@ or both.

Conflicts in evidence are for the jury to resolve. Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993); Butler v. State, 981 S.W.2d 849, 853 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d). Furthermore, the sufficiency of the evidence is not destroyed by contradictions or conflicts between witnesses= testimony. Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). When confronted with evidence which raises conflicting inferences, we must presume in our review that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). Proper application of the Jackson v. Virginia standard is made by resolving inconsistencies in the testimony in favor of the verdict. Id. After aligning the facts in the light most favorable to the verdict, we must then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (quoting Jackson, 443 U.S. at 319).

We find that any rational trier of fact could have found beyond a reasonable doubt that appellant committed aggravated sexual assault against B.S. by causing his sexual organ to contact the sexual organ of B.S. First, child victims are not expected to testify with the same clarity and ability that is expected of adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Even when the victim is a child, the victim=s testimony alone is sufficient to support a conviction for sexual assault. Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Second, B.S.=s testimony as a whole, is quite clear. The prosecutor began by asking B.S. about appellant touching her chest, then about appellant touching her vagina, her touching his penis, and then the two sexual organs touching each other. Moreover, B.S. testified that her grandpa got on top of her and his private touched her private, that the two only touched, and that his private did not go inside her private. In addition, McKean testified that B.S. told her, using the word Aprivates,@ that appellant=s penis rubbed around her vagina.

Viewing the evidence in the light most favorable to the jury=s verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. We overrule appellant=s second point of error.

C. Factual Sufficiency

In his third point of error, appellant claims that the evidence was factually insufficient to support the jury=s verdict, in that the evidence did not prove that appellant caused his sexual organ to contact the sexual organ of B.S. Other than presenting this court with case law setting forth the standard of review for factual sufficiency, appellant=s brief on his second point of error reiterates the argument set out in support of his legal insufficiency claim.

Reviewing the evidence with appropriate deference to the jury=s verdict, we find that the evidence is not so weak as to be factually insufficient. Although appellant proffered contrary evidence, specifically his denial he committed the offense, we find that this evidence does not greatly outweigh the State=s evidence to the extent that the conviction is clearly wrong and unjust. See Johnson, 23 S.W.3d at 11. B.S. clearly testified appellant assaulted her and caused their sexual organs to touch. We find the evidence factually sufficient to support the jury=s verdict. We overrule appellant=s third point of error.

 

II. Sixth Amendment Right To Compulsory Process For Obtaining Witnesses

In appellant=s first point of error, he asserts the trial court erred in prohibiting him from offering evidence on his defensive theory that another person committed the aggravated sexual assault against B.S. Invoking the Sixth Amendment, appellant contends this limitation violated his federal constitutional right to compulsory process. We disagree.

The Sixth Amendment right to compulsory process is, A>in plain terms the right to present a defense, the right to present the defendant=s version of the facts as well as the prosecution=s to the jury so it may decide where the truth lies.=@ Coleman v. State, 966 S.W.2d 525, 527 (Tex. Crim. App. 1998) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967)). A defendant has the right to compulsory process for obtaining witnesses in his favor who are physically and mentally capable of testifying to evidence personally observed. Jones v. State, 501 S.W.2d 677, 679 (Tex. Crim. App. 1973). However, the right to compulsory process is not absolute; the Sixth Amendment guarantees compulsory process for obtaining only those witnesses whose testimony would be both material and favorable to the defense. United States v. Valenzuela Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446 (1982). To exercise this right, a defendant must make a plausible showing to the trial court, by sworn evidence or agreed facts, that the witness=s testimony would be material and favorable to the defense. Coleman, 966 S.W.2d at 528. Evidence is considered material when Ashown to be addressed to the proof of . . .>any fact that is of consequence to the determination of the action.= >If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.=@ Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (quoting 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal ' 401.1 (2d ed. 1993 & Supp.1995)). The burden is on the defendant to Ademonstrate to the Court that there is >some colorable need for the [witnesses] to be summoned.= . . . [O]therwise, frivolous and annoying requests would make the trial endless and unduly burdensome on the Court and all officers thereof.@ Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (quoting Hoskins v. Wainwright, 440 F.2d 69, 71 (5th Cir. 1971)).

On the record before us, it is clear that appellant did not make the necessary showing. Appellant argued in his offer of proof to the trial court that: (1) Thomas Harkins, his son, would testify that he sexually assaulted B.S.; (2) that McKean would testify that Thomas made B.S. perform oral sex, fondle him, and tried to have sexual intercourse with her; (3) B.S.=s mother would testify that Thomas= assaults on B.S. lasted for a year and a half with appellant=s acts in between; and (4) that appellant=s wife would testify that she confronted appellant about B.S.=s allegations against Thomas without ever mentioning the allegation made against him. However, this evidence about Thomas= sexual assault of B.S. is not relevant as to whether appellant also committed sexual assault against B.S. It is immaterial inasmuch as it is evidence that helps only to Aprove a proposition which is not a matter in issue.@ Miller, 36 S.W.3d at 507. The complainant specifically alleged abuse done to her by appellant; her additional allegations of abuse by Thomas are not at issue in this trial. That Thomas sexually assaulted B.S. does not negate complainant=s testimony that appellant also assaulted her.

The trial court correctly assessed this unusual case as two separate incidents involving two separate defendants. This is not a case of mistaken identity where evidence of another perpetrator would undercut the persuasiveness of the victim=s identification or where Aother crimes@ evidence would negative the accused=s guilt. Cf. United States v. Stevens, 935 F.2d 1380, 1402-04 (3d Cir. 1991) (holding that when defendant claimed mistaken identity in aggravated sexual assault prosecution, it was error to exclude direct evidence that an alternate perpetrator did exist and that this person had committed another offense precisely like the charged one during the same time period and in the same vicinity). B.S. did not state that either Thomas or her grandfather assaulted her; she stated that both of them had abused her. She distinguished between the acts of Thomas and those of her grandfather and plainly testified in this case about appellant=s assaultive conduct.

Appellant=s right to compulsory process was not violated because he made no plausible showing to the trial court that Thomas= testimony, or testimony by other defense witnesses about Thomas= independent acts of abuse, would be material and favorable to appellant=s defensive theory that Thomas, and not appellant, assaulted B.S. See Coleman, 966 S.W.2d at 528. We overrule appellant=s first point of error.

CONCLUSION

We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Justices Anderson, Hudson, and Seymore.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Appellant=s legal sufficiency challenge does not question the element of B.S.=s age at the time of the assaultCyounger than 14Cthe factor raising the sexual assault to aggravated sexual assault.