Adams, John Quincy v. The State of Texas--Appeal from 320th District Court of Potter County

ADAMS V. STATE NO. 07-96-0383-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MAY 20, 1997
______________________
JOHN QUINCY ADAMS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
______________________
FROM THE 320TH JUDICIAL DISTRICT COURT OF POTTER COUNTY;
NO. 36,457-D; HONORABLE DON EMERSON, JUDGE
______________________

Before BOYD, C.J., REAVIS, J., and REYNOLDS, S.J. (1)

 

After a jury found him guilty of the first degree felony offense of aggravated sexual assault of a child, and assessed his punishment at imprisonment for life, appellant John Quincy Adams inquires whether the evidence was legally and factually sufficient to establish the essential elements of the offense. Answering "yes," we will affirm.

 

The record reveals that on the occasion in question, the eight year old victim was spending the night at the home of her best friend, Elijah Barr. The two frequently spent the night at each other's home. Appellant rented a room in the Barr home under an arrangement with the friend's mother, Jan Barr, regarding the household bills. He had been present on a prior occasion when the victim spent the night in the home and nothing unusual occurred.

 

In the evening, the victim and Elijah saw the movie "Hell Raiser," during which the victim said she watched people get cut up and saw blood. The victim reported that after she went to sleep in a sleeping bag on the floor of Elijah's room, she woke up to find appellant laying beside her. He started pulling down her panties worn under her nightgown. She started to scream, but appellant put his hand over her mouth and asked if she wanted him to hurt her. Appellant started kissing her "private," and touched her "tee-tee" with his lips. She screamed, Jan Barr came in "real quick," and got appellant out of the room.

 

Jan related that while she was asleep, she was alerted by a cry, a sudden scream. Within a short period of time, "two seconds," she entered her son's room. She observed that her son was asleep in his bed, that the victim was in a sleeping bag on the floor, holding her underwear and putting it on, and that appellant, clad in his underwear, was sitting next to the victim. Appellant was rubbing the victim's back, saying she had a nightmare, but the victim indicated that she was not having a nightmare.

 

Jan took the victim to her room, where the victim said that appellant had put his hand over her mouth, saying, "I don't want to hurt you," and kissed "her privates." Jan confronted appellant, who stated he did not do it, and repeated that the victim was having a nightmare.

 

Admitting that she had been diagnosed with mental illness, Jan reported that she was taking Lithium, a side effect of which was perhaps some memory loss. She also admitted to possibly drinking two beers, even though her doctor said she should not be drinking.

 

Jan called the victim's mother, Darla Gann. Upon her arrival, appellant said that her daughter had accused him of touching her. Darla, who testified that she watched horror films with her daughter and that her daughter never had any problems with nightmares or waking up screaming, talked with her daughter and again with appellant. Afterwards, the police were called.

 

Responding to the call, Amarillo City Patrolman Darrell Wertz went to the Barr residence and talked with Jan and Darla. Appellant was not there and Wertz did not talk with the victim. Wertz, who did not have any special training in assault matters, did not seek a sexual assault examination of the victim. Because there was no penetration, Wertz believed such an examination, the purpose of which was to determine genital trauma and collect any exchange of body fluids, was not required, albeit he agreed that saliva would be a body fluid. After his investigation, Wertz filed a police report.

 

A videotaped interview with the victim was conducted at Bridge Children's Advocacy Center. The interviewer was not asked to, and did not, reveal the contents of the interview and the videotape was not admitted into evidence.

 

Appellant did not testify. During the punishment phase of the trial, the State evinced that appellant previously was convicted in Arizona of the three felony offenses of aggravated assault, burglary in the second degree, and theft.

 

Combining his two points of error for the purpose of argument, appellant submits that the legal and factual insufficiency of the evidence is shown by the following testimony: At the times he was present when the victim spent the night at the Barr home without watching horror movies, nothing unusual happened and no allegations were made against him. When the victim yelled for Jan, who came quickly, Elijah, in the bed above the victim, stayed asleep the whole time. Jan had been diagnosed with mental illness; she was taking Lithium with a side effect of memory loss; and she had a couple of beers, although her doctor said she should not drink. The officer dispatched to the scene had no special training in sexual assault matters and did not seek a sexual assault exam. And, most importantly, the victim stated she had previously met with the prosecutor, who talked with her about the kind of questions he was going to ask her.

 

Although appellant emphasizes only that portion of the evidence he deems favorable to his contentions, the jury had the opportunity to consider all of the evidence before it reached its verdict. And, before deciding appellant's challenges to the sufficiency of the evidence to support the verdict, we have the duty to consider all of the evidence admitted at trial. Villalon v. State, 791 S.W.2d 130, 133 (Tex.Cr.App. 1990).

 

In its consideration of the evidence, the jury, as the sole judge of the weight of the evidence and the credibility of the witnesses, anyone of whose testimony the jury may believe or disbelieve in whole or in part, was not bound to credit appellant's version of the events. Morales v. State, 828 S.W.2d 261, 263 (Tex.App.--Amarillo 1992), aff'd, 853 S.W.2d 583 (Tex.Cr.App. 1993). Instead, the jury could believe the victim's testimony that appellant's mouth touched her genitals, as confirmed by the outcry witness Jan. This testimony was sufficient for any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt. Villalon v. State, 791 S.W.2d at 134; Clark v. State, 558 S.W.2d 887, 889 (Tex.Cr.App. 1977). Appellant's first point of error is overruled.

 

Even though appellant submits that the testimony upon which he relies casts doubt on the factual sufficiency of the evidence to support his conviction, this testimony was before the jury for reconciliation with all the other evidence. When the jury convicted appellant, it expressed its view that this evidence did not outweigh the evidence of his guilt. Thus, the presence of the testimony relied upon by appellant does not call for a reversal if there is enough credible evidence to support the conviction. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Cr.App. 1982).

 

Then, in testing the factual sufficiency of the evidence, we view all of the evidence without considering it in the light most favorable to the prosecution. But, in doing so, we must be appropriately deferential to the jury's verdict in order that we do not substitute our judgment for that of the jury. Clewis v. State, 922 S.W.2d 126, 134-35 (Tex.Cr.App. 1996). Having done so, we cannot say that the evidence credited by the jury to establish appellant's guilt of the crime beyond a reasonable doubt is so contrary to the overwhelming weight of the evidence as to render the jury's verdict clearly wrong and unjust. Appellant's second point of error is overruled.

 

The judgment is affirmed.

 

Charles L. Reynolds

Senior Justice

 

Do not publish. Tex. R. App. P. 90(c).

1. Charles L. Reynolds, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 1997).