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concluding proper outcry witness was police officer and not grandmother, where child told grandmother that she had sex with defendant and told police officer "her dad had penetrated her vagina with his penis and had oral sex with her"
Summary of this case from Skinner v. StateOpinion
No. 05-09-01492-CR
Opinion issued April 20, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-32580-N.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Appellant Bruce Kevin Johnson appeals his conviction for aggravated sexual assault of a child under fourteen years of age and accompanying sentence of sixty-five years' imprisonment. In three issues, appellant contends the trial court abused its discretion when it admitted the testimony of Officer Pearl McDowell as the outcry witness and that the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
At the time of the offense, Alexis was thirteen years old and living with her cousin. Appellant, Alexis's father, was living with his mother, Verlene Adkins. Alexis would visit him on on weekends. Alexis testified that, when she stayed the night with him, they would sleep in the same bedroom and occasionally in the same bed upon his request, despite the presence of two beds in the room. Alexis stated that on one night while they were in bed together, he engaged her in sexually explicit conversation and began touching her chest. He then removed her pants, began performing oral sex on her, and persuaded her to reciprocate. She testified that, afterward, he "had sex" with her, which she confirmed involved appellant inserting his penis into her vagina. She explained this occurred on four more occasions. On the night of the charged offense, appellant was having sex with Alexis, and she began screaming. He ordered her to be quiet to avoid waking his mother, Ms. Adkins, who was asleep in the other bedroom. She testified that she "kept screaming and tried to kick at the wall," so he grabbed her by the throat, slammed her to the bed, and told her that if she screamed again, he would choke her to death. Ms. Adkins entered the bedroom while appellant was holding Alexis down on the bed. She instructed Alexis to dress and drove her to the hospital. On the way, Alexis told Ms. Adkins about having sex with appellant and that it had happened before. However, she did not relay any details about the specifics of the abuse to Ms. Adkins. Alexis explained that Ms. Adkins was opposed to Alexis filing charges against appellant because she thought it "wasn't right." Ms. Adkins's whereabouts were unknown at the time of trial. When they arrived at Charleton Methodist Hospital, officers transported Alexis to Parkland Medical Hospital after learning that sexual abuse was involved. There, she discussed the details of the offense with officers, one of whom was Officer Pearl McDowell with the Dallas Police Department. The State designated Officer McDowell as the outcry witness. At trial, defense counsel objected to the introduction of Officer McDowell's testimony as the outcry witness, arguing that Ms. Adkins was in fact the proper outcry witness. The trial court rejected this argument and found, after a sub rosa examination of Officer McDowell, that the State had properly designated her as the outcry witness and admitted her testimony accordingly. Officer McDowell testified that when she arrived at Charleton Methodist Hospital, Alexis was emotional and crying. She informed Officer McDowell that "her dad had raped her." Officer McDowell asked what she meant by that, and Alexis stated that "her dad had penetrated her vagina with his penis and had oral sex with her." She and her partner transported Alexis to Parkland Medical Hospital. She explained that, while on route to Parkland, she learned that her department would not be handling the investigation, so she began talking to Alexis more as a "mother . . . because [Alexis] was so upset." Dr. Clifford Wai, a gynecologist from Parkland trained in sexual assault examinations, examined Alexis. Dr. Wai testified that Alexis informed him that the assailant was her father and that he "got into bed with her and raped her." Adrienne Warner, a forensic biologist at the Southwestern Institute of Forensic Science (SWIFS) testified she observed "sperm heads" on the vaginal and anal smears that were collected from Alexis. Ken Balagot, another forensic biologist with SWIFS, conducted the DNA analysis on the swabs and smears collected from appellant and Alexis. He testified that the vaginal swab contained DNA markers that corresponded with appellant's DNA profile. Kathy Dumond, a therapist at Dallas Children's Advocacy Center (DCAC), met with Alexis for several weeks following the offense. Dumond testified that Alexis exhibited behavior and symptoms common in children who have suffered sexual abuse, including depressive behavior, low self-esteem, suicidal thoughts, persistent anger, and self-mutilation. She explained these behaviors exhibited by Alexis were "more severe" than those exhibited by other abuse victims with whom she had worked. The jury found appellant guilty of aggravated sexual assault as charged in the indictment. The trial court found both enhancement paragraphs true and sentenced appellant to sixty-five years' imprisonment. This appeal ensued.Analysis
In his first issue, appellant contends the trial court abused its discretion when it admitted the testimony of Officer Pearl McDowell as the outcry witness. Article 38.072 of the code of criminal procedure allows the admission of certain hearsay testimony in the prosecution of offenses committed against children younger than fourteen years old. Tex. Code Crim. Proc. Ann. Art. 38.072 (West Supp. 2010). To be a proper outcry statement, the child's statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse. See Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd) (citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). The trial court has broad discretion in determining the proper outcry witness, and its determination will not be disturbed absent an abuse of discretion. See Sims, 12 S.W.3d at 500 (citing Schuster v. State, 852 S.W.2d 766, 768 (Tex. App.-Fort Worth 1993, pet. ref'd)). Appellant objected at trial and contended that Ms. Adkins, not Officer McDowell, was the proper outcry witness. The trial court conducted a sub rosa hearing in which Officer McDowell testified to the statements made by Alexis. Specifically, Alexis told Officer McDowell that appellant had penetrated her vagina with his penis and had put his mouth on her vagina. Prior to the sub rosa hearing, Alexis testified that she did not relay any details about the specifics of the abuse to Ms. Adkins. At the conclusion of the hearing, the trial court overruled appellant's objection and allowed Officer McDowell to testify as an outcry witness. As in the Sims case, the record reveals Alexis made statements to Officer McDowell that provided specific details of the abuse establishing the elements of the charged offense, i.e. that appellant "penetrated her vagina with his penis." See Sims, 12 S.W.3d at 500. Further, the record provides no indication as to the level of detail of the statements Alexis gave to Ms. Adkins. Therefore, we conclude the trial court did not abuse its discretion in approving the State's designation of Officer McDowell as the outcry witness. See id. We overrule appellant's first issue. In his second and third issues, appellant argues the evidence is legally and factually insufficient to support the conviction. We note the Texas Court of Criminal Appeals has overruled Clewis v. State, holding the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard. 443 U.S. 307. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894-95. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). In order to obtain a conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the contact or penetration of the female sexual organ of Alexis, a child younger than fourteen, by appellant's sexual organ. See Tex. Penal Code Ann. § 22.021 (West 2010). Our review of the record indicates that Alexis was thirteen years old at the time of the offense. She testified that appellant "had sex" with her, which she confirmed involved appellant inserting his penis into her vagina. Officer McDowell said Alexis told her that "her dad had penetrated her vagina with his penis and had oral sex with her." Dr. Wai also testified that Alexis informed him that the assailant was her father and that he "got into bed with her and raped her." Balagot, a forensic biologist from SWIFS, testified that the vaginal swab contained DNA markers that corresponded with appellant's DNA profile. Finally, Dumond, a therapist at DCAC, testified that Alexis exhibited behavior and symptoms common in children who have suffered sexual abuse. Based on our review of the record, we conclude the evidence was sufficient for the jury to convict appellant of aggravated sexual assault of a child under fourteen years of age. See Jackson, 443 U.S. at 319. We, therefore, overrule appellant's second and third issues. Having overruled all of appellant's issues, we affirm the judgment of the trial court.Alexis is a pseudonym for the complainant used throughout these proceedings.
922 S.W.2d 126 (Tex. Crim. App. 1996).
443 U.S. 307 (1979).