Wayne Fuller v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-06-00406-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WAYNE FULLER, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Wayne Fuller appeals his conviction for sexual assault of a child. On appeal, Appellant argues that the evidence was legally and factually insufficient to support his conviction and that the trial court erred when it refused to grant a mistrial. We affirm.

Background

Appellant was charged by indictment with sexual assault of a child, a second degree felony.1

The indictment alleged that, on or about August 10, 2005, in Smith County, Texas, Appellant intentionally or knowingly caused the penetration of the female sexual organ of K.H. by his hand and finger(s), a child who was younger than seventeen years of age and not the spouse of Appellant. Appellant pleaded not guilty. At trial, K.H. testified that her father and Appellant were roommates in Grand Saline, Texas. At the time of the offense, she was sixteen years old and living in Vidor, Texas with her aunt. Because K.H. s father had recently had bypass surgery, Appellant drove to Vidor and picked up K.H. so that she could visit her father. K.H. stated that she and Appellant traveled through Tyler, Texas on the way to Grand Saline. During the trip, K.H. testified that Appellant showed her a picture of someone he identified as his granddaughter, who appeared to be about eighteen years old. At one point, Appellant pulled K.H. over by him, unfastened her pants, put his hand down her pants, massaged her vagina, and penetrated her vagina with his finger or hand. According to K.H., they were outside of Tyler, Texas when the incident occurred.

K.H. stated that she did not know why she did not call the police after the incident. She did not inform her father because he had recently had bypass surgery and she did not want him to do anything violent. However, approximately three days later, she told her cousin what had occurred. K.H. stayed with her father two weeks during which she also stayed at other relatives houses. Once, Appellant drove her to the mall to see her sister. She did not tell her sister what had occurred. Because she had just received her driver s license, she asked Appellant if she could drive his truck part of the way back to Grand Saline. Under cross examination, K.H. stated that she was terrified, scared to death of Appellant, and scared that he was going to do it again. Approximately two and one-half months later, K.H. s aunt asked if she wanted to live with her father. K.H. said not anymore and told her aunt what had occurred. She also stated that the appointment with the local sheriff s department to give a written statement was changed a few times.

K.H. s cousin testified that after K.H. told her about the incident, K.H. was crying uncontrollably, shaking, and trembling. Although K.H. s cousin stated that she believed K.H., she did not inform law enforcement. K.H. s aunt testified that after K.H. s visit with her father, she was more withdrawn, defensive, and had increased anger management problems, which she exhibited by biting herself. K.H. s aunt also stated that there were scheduling problems with the local sheriff s department in getting K.H. s written statement, including the aunt s being sick. K.H. s cousin testified that K.H. stayed away from her father s house as much as she could. K.H. s aunt testified that from her conversations with K.H. during those two weeks, she did not seem to spend much time at her father s house.

Charles Houghton, a detective with the Smith County Sheriff s Department, stated the assault took place just north of the Smith County line on Highway 69 on the south side of Tyler, Texas. Gayle Burress, Ph.D., a psychologist, testified that victims of sexual assault almost always feel guilt, shame, and embarrassment. She stated that some victims tell immediately and others wait years. According to Burress, if K.H. told her cousin and not other family members, K.H. trusted her more or her cousin saw behavior from K.H. that disturbed her or caused her concern. She stated that K.H. s decision not to tell her father was reasonable because K.H. would not want to be responsible for his having complications from his surgery. According to Burress, a victim s reaction to a sexual assault is tied to the method of the assault and the victim s age, level of maturity, judgment, and background. Further, she stated that teenagers were notoriously bad decision makers. In fact, Burgess stated that an alleged victim who shouts [what occurred] from the rooftops would be unusual and she would question the person s motives and behavior. She also stated that if a perpetrator could stay in contact with his victim, he would do so because that s an easy mark. Regarding K.H. s trip to and from the mall with Appellant, Burgess stated that the behavior sounded like grooming on Appellant s part, or making sure that the victim stays tied to and receptive to the perpetrator. She also stated that there is absolutely nothing like the keys of a car to a [sixteen year old]. Burgess suspected that K.H. s biting herself more frequently was a precursor to cutting or a way of punishing herself, having control over her world, and letting out her emotions.

Appellant testified at trial and stated that his oldest granddaughter was approximately eleven and one-half years old on the date of the incident. He admitted that he had not seen his daughter or granddaughters for about six years. Appellant also stated that he had never seen his grandson. During closing argument in the guilt-innocence phase of the trial, the State noted that Appellant testified about his granddaughters, nieces, and daughters and how long it s been since he s seen them, I m telling [you], draw inferences from that. Appellant objected that the State s argument was outside the scope of the evidence. The trial court sustained the objection. Then, Appellant requested the trial court order the jury to disregard the statement. The trial court responded that it would allow the jury to consider the evidence they had heard. The trial court also clarified its ruling, stating that it sustained Appellant s objection to the prosecutor s statement to draw inferences from the evidence. Finally, Appellant asked the trial court to declare a mistrial, but the trial court overruled Appellant s request.

After the trial concluded, the jury found Appellant guilty of sexual assault of a child as charged in the indictment. After the punishment phase, the jury assessed Appellant s punishment at twenty years of imprisonment and a $10,000.00 fine.2 This appeal followed.

Legal Sufficiency

In his first issue, Appellant argues that the evidence was legally insufficient to support his conviction. More specifically, he contends that the evidence does not prove the offense occurred in Smith County, Texas.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained unless it is found to be irrational or unsupported by more than a mere modicum of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

Applicable Law

A plea of not guilty puts in issue the allegations of venue, and the State must prove such allegations or a conviction will not be warranted. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). Generally, venue need be proven only by a preponderance of the evidence. Id.; Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005). Proof of venue must be demonstrated by either direct or circumstantial evidence. Black, 645 S.W.2d at 790. Further, in cases involving sexual assault, venue is proper in the county in which it is committed, in the county in which the victim is abducted, or in any county through or into which the victim is transported in the course of the abduction and sexual assault. Tex. Code Crim. Proc. Ann. art. 13.15 (Vernon 2005). The trier of fact may make reasonable inferences from the evidence to decide the issue of venue. Couchman v. State, 3 S.W.3d 155, 161 (Tex. App. Fort Worth 1999, pet. ref d). It is sufficient if from the evidence the jury may reasonably conclude that the offense was committed in the county alleged. Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim App. 1964).

Analysis

In this case, K.H. stated that she and Appellant traveled through Tyler on their way to her father s house in Grand Saline. According to K.H., they were outside of Tyler when the assault occurred. The city of Tyler is within Smith County. Further, Houghton testified that the incident occurred to the south of Tyler within the boundaries of Smith County. From this evidence, the jury could have reasonably concluded that the offense was either committed in Smith County or that K.H. was transported through Smith County in the course of the sexual assault. See Tex. Code Crim. Proc. Ann. art. 13.15, 13.17. Viewing the evidence in the light most favorable to the jury s verdict, a rational trier of fact could have found by a preponderance of the evidence that venue was proper in Smith County. Therefore, the evidence is legally sufficient to support Appellant s conviction. Accordingly, we overrule Appellant s first issue.

Factual Sufficiency

In his second issue, Appellant argues that the evidence was factually insufficient to support his conviction. More specifically, he argues that the evidence was too sparse, weak, and contradictory to support his conviction.

Standard of Review

In conducting a factual sufficiency review of the evidence supporting the jury s verdict, we consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Ultimately, we must 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 our 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 Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002) (A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. ); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. It is not enough that we might harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of the conflict. See Watson, 204 S.W.3d at 417.

A person commits the offense of sexual assault of a child if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means. Tex. Penal Code Ann. 22.011(a)(2)(A) (Vernon Supp. 2007). A child is a person younger than seventeen years of age who is not the spouse of the actor. Tex. Penal Code Ann. 22.011(c)(1) (Vernon Supp. 2007).

Analysis

Appellant argues the evidence that Appellant molested K.H. is very weak and her testimony was not of the type or weight to support the conviction. Appellant identified claims made by K.H. that, he contends, were contradicted by her behavior or other evidence. He argues that K.H. claimed to be afraid of Appellant, but she stayed in his home, went to the mall alone with him, and failed to tell anyone but her cousin about the assault. Although K.H. claimed to be traumatized or terrified, Appellant notes that she missed an appointment with the sheriff s department to give a written statement because of her high school homecoming events. Further, he argues K.H. s cousin s inaction shows that she did not believe K.H. Finally, Appellant states K.H. did not tell the truth about Appellant s showing her a picture of his granddaughter because his oldest granddaughter was about twelve, not eighteen years old.

However, the evidence shows that K.H. s father and Appellant were roommates and that she frequently stayed with other relatives during the visit. K.H. admitted that Appellant took her to the mall, but stated that she wanted to visit her sister. K.H. also wanted to drive, having just received her driver s license. As noted by Burress, teenagers are usually bad decision makers and sixteen year olds want to drive. Although K.H. told her cousin about the assault, she did not tell her father because he had been ill. Burress stated that it was reasonable for K.H. not to tell her father, fearing that she would cause him to have complications. These matters relate to the credibility of the complaining witness.

Regarding the missed appointment with the sheriff s department, the testimony indicated that there were scheduling problems on both sides, not that K.H. preferred going to her high school homecoming events. K.H. described the picture Appellant showed to her and estimated the age of the person, whom Appellant had identified as his granddaughter. Appellant denied that his granddaughter was eighteen years old. Further, K.H. s cousin stated that she believed K.H., although she did not inform law enforcement. These matters relate to the credibility of the witnesses and whether the jury believed them.

In this case, the jury determined the credibility of the witnesses and resolved the evidentiary inconsistencies in the State s favor, which is its prerogative as fact finder. Having reviewed the record in its entirety, we conclude that the jury was entitled to find that Appellant sexually assaulted K.H. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. See Ortiz, 93 S.W.3d at 87; Johnson, 23 S.W.3d at 11; Jones, 944 S.W.2d at 648. Therefore, we conclude that the evidence was factually sufficient for the jury to find Appellant guilty of sexual assault of a child as charged in the indictment. Accordingly, we overrule Appellant s second issue.

Jury Argument

In his third issue, Appellant contends that the trial court erred when it failed to order a mistrial after the State argued outside the record. More specifically, he argues that the State s argument injected new and very harmful facts into the case.

Applicable Law

The law provides for, and presumes, a fair trial, free from improper argument by the prosecuting attorney. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim App. 1991). Proper jury argument falls within one of four distinct categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. Id. Reversible error results from improper prosecutorial argument only when the argument is extreme, manifestly improper, injects new and harmful facts into [the] case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by [a] judicial instruction to disregard [the] argument. Id. (quoting Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991)). We examine the argument considering the entire record. Sauceda v. State, 859 S.W.2d 469, 474 (Tex. App. Dallas 1993, pet. ref d).

Analysis

During closing argument, the State asked the jury to draw inferences from the fact that Appellant admitted it had been a long time since he had seen his granddaughters, nieces, and daughters. Although the trial court sustained Appellant s objection, it denied his request that the jury be ordered to disregard the statement or for a mistrial. Analyzing the statements at issue in the context of the entire jury argument, we conclude that the prosecutor s statement was acceptable as a summary of the evidence and asking the jury to make a reasonable deduction from that evidence. See Long, 823 S.W.2d at 267. Contrary to Appellant s contention, we conclude that the prosecutor s argument did not inject new or harmful facts into the case. Thus, the trial court did not err when it failed to order a mistrial. Accordingly, we overrule Appellant s third issue.

Disposition

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered January 9, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 See Tex. Penal Code Ann. 22.011(a)(2)(A), (f)(Vernon Supp. 2007).

2 An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term of not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000. See Tex. Penal Code Ann. 12.33 (Vernon 2003).