Mark Dalton Acevedo a/k/a Mark D. Simpson v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00575-CR

Mark Dalton ACEVEDO a/k/a Mark D. Simpson,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-7631

Honorable Pat Priest, (1) Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 13, 2006

AFFIRMED

A jury found Mark Dalton Acevedo a/k/a Mark D. Simpson guilty of aggravated sexual assault of a child. After finding the enhancement paragraph true, the trial court assessed punishment at fifteen years' imprisonment. On appeal, Acevedo challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm the judgment of the trial court.

Background

On June 13, 2003, Acevedo was spending the night at his ex-girlfriend, Terry Trahan's, apartment while she was in the hospital. Terry's daughter, Cindy Trahan, and Cindy's three children were also staying at the apartment. Cindy had known Acevedo since she was a child and it was not unusual for Acevedo to babysit and spend time with her children. On June 13, 2003, Cindy was doing crack cocaine in the bathroom while Acevedo was watching television in the living room with the children. During the evening, Cindy's five year-old daughter, B.G., repeatedly left the living room and went to the bathroom. At one point, B.G. asked Cindy if she could put on a nightgown. The next time B.G. went to the bathroom, Cindy noticed that B.G.'s underwear was on inside out. Cindy asked B.G. what was wrong, and eventually B.G. said, "Mommy, he won't leave me alone." According to Cindy, B.G. also said, "He told me that I can't say anything or he'll go to jail." When Cindy asked B.G. where Acevedo had been touching her, B.G. pointed to her genital area and said, "down there." Cindy then told Acevedo that B.G. was sick and she was taking her to the hospital. Cindy left her two sons with Acevedo and called the police from a pay phone outside. Police officers arrived and arrested Acevedo, who was then taken to the Methodist Speciality and Transplant Hospital for a sexual assault exam. Cindy took B.G. to Santa Rosa Children's Hospital for a sexual assault exam. Avecedo was subsequently charged with penetrating the female sexual organ of B.G., a child younger than 14 years of age, by placing his finger in B.G.'s female sexual organ. See Tex. Penal Code Ann. 22.021(a)(1)(B)(i) (Vernon Supp. 2006).

Discussion

Acevedo contends the evidence is both legally and factually insufficient to support the jury's finding that he penetrated the female sexual organ of B.G. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005) (same); Watson v. State, No. PD-469-05, 2006 WL 2956272, at *8, 10 (Tex. Crim. App. Oct. 18, 2006) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (same).

At trial, B.G., who then was seven years old, testified that although she did not remember very much about the night of June 13, 2003, Acevedo touched her with his hand under her clothes on her "private." B.G. was asked by the prosecution, "[w]hen Mark touched you, did he put his finger in your private part?" B.G. answered, "yes." (2) Betty Mercer, a sexual assault nurse examiner at Santa Rosa Children's Hospital, testified that she performed a sexual assault exam on B.G. that yielded normal results; however, Mercer also testified that she would not expect to see any physical trauma. Mercer stated that B.G. told her that Acevedo "touched me right here" and pointed to her genital area. Reading from her exam report, Mercer indicated that B.G.'s "genital area" had been "penetrated." Mercer explained that penetration of the female sexual organ would include "any penetration of the 'outer lips,'" or the labia majora. Garon Foster, a forensic analyst, testified that the Bexar County Crime Lab received and tested two sexual assault kits, one containing evidence from B.G. and the other containing evidence from Acevedo. Acevedo's kit included a cutting from the boxer shorts he was wearing at the time of his arrest. Foster testified that there was a mixture of Acevedo's DNA and other DNA present on the boxer shorts. Foster further stated that B.G.'s DNA could not be excluded as being the donor of the "other" DNA, whereas the DNA of 99.3% - 99.6% of the population could be excluded.

Acevedo argues that "no rational trier of fact would have found that [he] penetrated the female sexual organ of the complainant." We disagree. Any penetration that passes beyond the folds of the external female genitalia, no matter how slight, is sufficient. See Vernon v. State, 841 S.W.2d 407, 409-10 (Tex. Crim. App. 1992) (penetration of the vaginal canal is not required). Furthermore, the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and the jury may choose to accept or reject any or all testimony of any witness. McFarland v. State, 928 S.W.2d 482, 496 (Tex. Crim. App. 1996), overruled on other grounds,Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998); Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Additionally, the testimony of a child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.--Dallas 2002, pet ref'd). Although Acevedo denied ever putting his finger in B.G.'s vagina, or molesting her in any manner, by its verdict the jury chose to believe B.G.'s version of the facts, not Acevedo's. As the reviewing court, we may not substitute our own judgment for that of the jury. Johnson v. State, 187 S.W.3d 591, 602 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd).

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational juror could have found the essential elements of aggravated sexual assault of a child beyond a reasonable doubt. Jackson, 443 U.S. 307, 319. Furthermore, the evidence supporting Acevedo's conviction was not so weak that the fact-finder's determination was clearly wrong and manifestly unjust. Watson, 2006 WL 2956272, at *8, 10. Accordingly, Acevedo's issues are overruled and the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

Do Not Publish

1. Sitting by assignment.

2. Although the only testimony regarding penetration was elicited by leading questions, there was no objection made at trial and the rules of evidence provide that leading questions may be used on direct examination of a witness as "necessary to develop the testimony of the witness." See Tex. R. Evid. 611(c); Rodriguez v. State, 997 S.W.2d 640, 643 (Tex. App.--Corpus Christi 1999, no pet.) (stating that the rule against leading questions is somewhat relaxed in cases dealing with child witnesses, and that the asking of leading questions will seldom be a ground for reversal where a child is testifying).