John Gonzales v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-02-066-CR

JOHN GONZALES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # FISC-00-15821

O P I N I O N

After a jury found John Gonzales guilty of aggravated sexual assault of his neighbor s eight-year-old daughter, the trial court sentenced him to thirty years imprisonment. On appeal, he challenges the factual sufficiency of the evidence. Because we find the evidence factually sufficient, we will affirm.

BACKGROUND

The indictment alleged that on or about June 10, 2000, Gonzales did then and there intentionally or knowingly cause the penetration of the female sexual organ of J.R. The indictment arose from an incident involving a sleep-over at Gonzales s house.

On June 9, J.R. spent the afternoon playing with Gonzales s children, Brittany and John, and then went to their house to spend the night, as she had done several times before. Heather Bryant, Gonzales s teenage daughter from a previous relationship, stayed with the children while Gonzales and his wife, Tina, went to a restaurant and a bar in Waco with some friends. // They returned home at about two o clock in the morning.

Although their stories differ as to who was more intoxicated, both Gonzales and Tina admitted that they had been drinking at the bar and that they were arguing when they returned home. They found all four minors asleep in the living room with the television on. // Gonzales and Tina testified that they went into their bedroom and continued arguing. However, their testimony differed as to how long they argued and when they went to sleep.

Gonzales and Bryant testified that at some point during the night, Gonzales left his bedroom and went to the kitchen for a drink. They both said that was the only time he left his room until 10:30 the next morning. J.R., however, told a very different story. She testified that Gonzales woke her up ten or eleven times during the night, asking her if she wanted to sleep on the floor instead of the couch. J.R. told Alice Linder, the nurse who examined her after the incident, that the last time Gonzales woke her up, he put his hand inside her underwear and touched her. J.R. said it had hurt, and that he stopped when she told him to. However, she also said that she did not cry out or scream because she did not want to wake up Tina.

At home the next morning, J.R. told her mother, Tammy Russell, what happened. Russell testified that J.R. cried while telling her about the incident. Russell examined Julie s underwear and found two small, dark stains in the front area that she suspected to be blood. // She immediately reported the incident to the sheriff and brought in the underwear for testing. Subsequent testing indicated the two spots were blood.

Two days later, J.R. was examined by Alice Linder, a Sexual Assault Nurse Examiner (S.A.N.E.), at an appointment scheduled by Officer Johnny Burks, the sheriff s investigator. Linder testified that she found no evidence of trauma, but explained that this finding did not preclude the possibility of sexual assault. J.R. was also interviewed at the Bell County Children s Advocacy Center after Burks set up an appointment.

FACTUAL SUFFICIENCY

Gonzales s sole issue asserts that the evidence is factually insufficient. In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the in the light most favorable to the prosecution construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

We must also remain cognizant of the factfinder s role and unique position one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

APPLICATION

Gonzales argues that the jury s verdict was so contrary to the overwhelming weight of the evidence that it was clearly wrong and unjust. To support this argument, he points to the testimony of three witnesses: Bryant, Linder, and himself. Bryant testified that she was in the living room the entire night and that she awoke when Gonzales and Tina returned home. She said she did not fall asleep again until six o clock in the morning, two hours before the other children awoke. She said that everyone had to get up at eight o clock because J.R. had to go home. She testified that Gonzales entered the living room only once during the night, and that the incident alleged by J.R. could not have happened without Bryant s knowledge because she was in the room and awake all night. Linder testified that the medical examination revealed no abuse or trauma. Gonzales testified that he walked through the living room once during the night to get a drink from the kitchen. And he denied assaulting J.R.

On the other hand, J.R. testified that Gonzales assaulted her. She said that at some point Gonzales touched her in the front where she goes to the bathroom, and it had hurt. Russell, J.R. s mother who was the outcry witness, and Alice Linder, the S.A.N.E. who examined J.R., testified about what J.R. had told them. Also, a serologist from the crime lab in Waco testified that the stains on J.R. s underwear tested positive as blood. // Finally, Tina s testimony contradicted Bryant s assertion that they knew that J.R. had to go home early. Tina testified that on the morning of June 10, she called to see if J.R. could go with them to the park or something and only then learned that the Russells had planned to attend a family reunion.

Gonzales argues that the verdict was unjust because the jury did not believe his side of the story. But as finders of fact, the jury must weigh the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented by the parties. Chambers, 805 S.W.2d at 461. Because the jury weighs conflicting evidence and resolution of the conflicts turns on the credibility of the witnesses, we must defer to the jury s determination. Cain, 958 S.W.2d at 410. Accordingly, we overrule Gonzales s factual sufficiency issue.

CONCLUSION

Having overruled Gonzales s only issue, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed November 20, 2002

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