No. 14-05-00616-CR
Opinion filed June 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 122nd District Court, Galveston County, Texas, Trial Court Cause No. 04CR1302. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
ADELE HEDGES, Chief Justice.
A jury found appellant William Drumwright guilty of indecency with a child and assessed a punishment of six years' incarceration. In two points of error, appellant contends that the evidence is legally and factually insufficient to sustain his conviction. We affirm.
Background
Appellant is the ex-husband of Virginia Drumwright, who is the mother of the complainant, S.P. Virginia testified that on May 13, 2004, when S.P. was thirteen, S.P. stated that appellant had molested her. Earlier that evening, appellant had informed Virginia that S.P. had been disrespectful to him, so Virginia had approached her daughter about the situation. In response, S.P. asked whether Virginia remembered what "Candy said her brother did to her" and then stated that appellant had raped her. S.P. explained that about a year earlier, when she was almost thirteen, appellant had jumped on her while she was lying on the couch, pulled her pants down, and bumped his penis against her vagina for ten to fifteen minutes. Appellant also told S.P. not to tell her mother. Virginia testified that she sent S.P. upstairs and immediately confronted appellant. According to Virginia, appellant responded that "[he] knew these kids would break [them] up somehow" and stated that "[he'd] never admit it." After confronting appellant, Virginia asked S.P. if she was telling the truth and told her that she would be very hurt if S.P. were lying about the abuse. S.P. assured her mother that she was telling the truth. Virginia testified that she planned to leave immediately with the children, but that appellant ultimately left instead. Virginia testified that appellant was uncharacteristically calm when he decided to leave. Virginia, who was an officer with the Galveston Police Department at the time, told fellow officer Clemente Garcia about S.P.'s allegations when she went to work the next morning. Virginia testified that Officer Garcia spoke with S.P. at the house and that S.P. was also interviewed at the Advocacy Center in Galveston on May 14, 2004. Virginia was not present during S.P.'s medical exam or her meeting with the district attorney. Virginia filed for divorce because of S.P.'s allegations, but she insisted that she had not told S.P. to fabricate the allegations in order to gain custody of her younger son. She testified that she believed S.P. instead of appellant because she "had to protect [her] daughter" and could "tell by looking in [appellant's] eyes that he was lying." Virginia also stated that S.P. had never wavered in her account since May 13, 2004. On cross-examination, Virginia acknowledged that as part of her police officer training, she had taken a class about sexual abuse and sex offenders a few months before S.P. told her about the molestation. However, Virginia denied telling appellant that it was easy to make sexual abuse allegations without proof. Virginia also admitted that she had been married to S.P.'s father when she first met appellant but denied that appellant believed she was single. Virginia testified that the only additional detail S.P. had provided regarding the incident on the couch was that it had occurred around "tennis time," meaning April 2003. She acknowledged that she did not tell any family members about S.P.'s allegations until roughly two weeks after S.P.'s disclosure. Virginia testified that her marriage to appellant had been troubled, that she had spoken to an attorney just a few days after May 13, and that her divorce from appellant was pending. Virginia denied that their marital problems stemmed from financial difficulties, stating that appellant was mean, rude, and yelled a lot. She testified that appellant had hit her once about six years ago, but she did not report the incident because she was not injured. Virginia stated that appellant often talked to her all night about wanting to save their marriage. Pediatrician Dr. James Lukefahr, a specialist in child abuse and neglect who examined S.P., summarized S.P.'s medical records and the results of her examinations. Dr. Lukefahr read a portion of S.P.'s interview with a nurse, in which she described the incident on the couch and stated that appellant was "always touching [her] on [her] breasts or [her] front privates under [her] clothing." The notes indicated that S.P. did not maintain eye contact and folded into a fetal position when describing the encounter on the couch. Dr. Lukefahr testified that although S.P.'s examination revealed no physical signs of abuse, such results were consistent with the type and timing of the abuse she described. Ultimately, Dr. Lukefahr opined that S.P. had been sexually assaulted. On cross-examination, Dr. Lukefahr acknowledged that he had not personally examined S.P. but had consulted with the nurse who performed the examination. He also acknowledged that he had previously testified for the prosecution about a hundred times but only four times for the defense. Reiterating that S.P.'s exam showed no signs of physical trauma, Dr. Lukefahr agreed that those results did not rule out the possibility of a false allegation. He testified that nothing in S.P.'s records excluded the possibility that S.P. believed she had been assaulted only because it had been repeatedly suggested to her. Dr. Lukefahr opined that of the 3,500 cases he had reviewed, he immediately recognized only "half a dozen" as false allegations based on the medical exam; however, he did not know how many allegations ultimately turned out to be false. S.P., who was fourteen and in ninth grade at the time of trial, testified that she first talked about the molestation in May 2004, when she was in eighth grade. S.P. explained that she and her friend Windy Garcia were discussing a book about teenage sex when she told Windy: "Well, my stepdad did it to me, too." S.P. testified that she did not fabricate the allegation because of the material she read in the book. S.P. told her mother about the abuse on May 13, about two weeks after she confided in Garcia, and testified that she did not tell her mother earlier because she was scared. S.P. testified that when she was in the seventh grade, appellant molested her on the living room couch. According to S.P., they had been discussing tennis when appellant climbed on top of her, pulled down both their pants, and touched her vagina with his penis for about five minutes. S.P. also testified that appellant had touched her inappropriately many times both before and after the couch incident, although she could not remember when the touching had started. More specifically, S.P. recalled that when she and appellant were once driving home from Wal-Mart, he grabbed her breasts and offered to give her twenty dollars a week if she "would give him what he wanted," meaning sex. S.P. testified that appellant once forced her to touch his penis. S.P. testified that she understood the difference between the truth and a lie and that no one had told her what to say. On cross-examination, S.P. acknowledged that Garcia was being sexually abused and that the two of them often talked about the situation. She reiterated that she made the allegations against appellant about two weeks after she and Garcia discussed the sex book. S.P. admitted that after she made the allegations against appellant, her mother was no longer upset with her for being disrespectful to him. S.P. testified that at the time, she did not know the difference between rape and molestation and denied having seen an episode of South Park that described molestation. Although S.P. could not remember the day or month that the couch incident occurred, she stated that it happened during tennis season, that she had been watching cartoons, and that her two brothers were either upstairs or outside. She acknowledged that on May 20, 2004, a week after making the allegations, she went to the prom. She testified that appellant often yelled at and hit her but that she did not tell anyone about it. She explained that one time she told appellant that she had been at tennis practice when she had actually been at a male friend's house because she thought appellant would make fun of her or be angry if he knew the truth. Windy Garcia testified that in early May 2004, S.P. told her that appellant had tried to rape her and was always touching her. Garcia stated that S.P. had seemed sad and made a "weird face" immediately before confiding in Garcia. Garcia testified that she then told S.P. that she too had been sexually abused but that no one had believed her. Garcia stated that S.P. had not yet told her mother about appellant when she confided in Garcia. Finally, Garcia testified that she did not tell S.P. to fabricate the allegations against appellant. Officer Clemente Garcia of the Galveston Police Department testified that on May 14, 2004, Virginia Drumwright told him about S.P.'s allegations against appellant and was "highly upset." He also stated that when he interviewed S.P., S.P. was shaking and crying and kept her eyes downcast because she was uncomfortable. Officer Garcia testified that neither he nor Virginia told S.P. what to say. On cross-examination, Officer Garcia testified that S.P. had stated that appellant offered her twenty dollars a week for sex. He stated that S.P. had accused appellant of touching her breasts when she and appellant were driving back from "Krogers," not Wal-Mart. Officer Garcia testified that he had significant experience "gathering information" from people and that S.P.'s failure to maintain eye contact could indicate that she was lying. Appellant presented three defense witnesses and testified in his own defense. Psychologist Dr. Carmen Petzold testified that she had read peer-reviewed literature discussing false allegations of sexual abuse and had testified in over a hundred criminal and civil cases for both the State and the defense. Dr. Petzold completed a psychological evaluation of appellant in May 2005 based on a series of objective tests, appellant's previous work product, and two clinical interviews she had conducted in 2004. According to Dr. Petzold, appellant had "high average to superior intellectual abilities" and an introverted personality and was self-assured, self-disciplined, and "unlikely to react spontaneously or impulsively." The results indicated that appellant essentially functioned normally, although he had become withdrawn and reluctant to interact with people due to S.P.'s allegations. Dr. Petzold opined that "[u]nlike most people who are convicted [sex] offenders, [appellant] had a more than adequate fund of accurate sexual information." Dr. Petzold acknowledged that there was no "magic listing of indices for a sex offender." She stated that she had never interviewed S.P. and therefore had no opinion about S.P.'s truthfulness. Dr. Petzold summarized several studies finding that false allegations of sexual abuse often arise in a divorce context and stated that when she interviewed appellant, she was aware that he and Virginia were contemplating a divorce. On cross-examination, Dr. Petzold testified that she had reviewed the videotaped interview of S.P. but not S.P.'s medical records, Virginia's videotaped statement, or the offense report. She also testified that she had earned $4,200 for being an expert in appellant's case and estimated that she earned less than fifty percent of her annual income from testifying, although she could not remember how many times she had testified for the State in a felony matter at the guilt/innocence phase of a jury trial. Dr. Petzold testified that she had given presentations to the defense lawyers' bar associations of Harris County and Galveston County, but not to the District Attorneys' offices of those counties. Dr. Petzold stated that she had interviewed appellant for less than eleven hours, that the first four written tests appellant had taken in September 2004 were unsupervised "self-reporting" tests, and that the others were unobjective surveys. Dr. Petzold did not know the error rate for any of the tests, but she asserted that she had administered them to hundreds of adults and that a person could not "fail" them. Dr. Petzold acknowledged that there is no conclusive study regarding false allegations of sexual abuse, but she described a major study that found false allegations of sexual abuse in only two percent of nine thousand divorce cases. On re-direct examination, Dr. Petzold clarified the results of the study, insisting that the appropriate focus should be the two hundred and nine cases that involved allegations of abuse, not all nine thousand divorce cases. She also stated that as a psychologist, she typically did not have access to offense reports or witness statements, although she acknowledged that she had not asked to see S.P.'s medical reports. Dr. Petzold also asserted that the tests she administered to appellant were not designed to be pass/fail, and that appellant had provided a valid result. William Drumwright, Sr., appellant's father and a teacher, testified that Virginia had not been the sole provider for the family because appellant was an eBay seller and a photographer. He explained that the family had lived rent-free in a house owned by appellant's parents. Appellant's father testified that the family was "very close," that he had observed appellant and S.P. together more than fifty times, and that S.P. had never complained to him about appellant. Although appellant's father admitted that he had a vested interest in his son's happiness and safety, he stated that he would not lie to protect appellant. On cross-examination, appellant's father admitted that he blamed Virginia for ending appellant's marriage. He also stated that he had changed the locks on the family's rented house on May 20, 2004 and denied having an agreement with Virginia that would allow her to stay there for a week after S.P. made the allegations. Appellant's father agreed that when Virginia was at work, appellant was in charge of the children. He also admitted that he had no personal knowledge about what happened in the privacy of appellant's home. Petra Drumwright, appellant's mother and a retired teacher, testified that she had observed appellant with S.P. at least four or five times a year at family events and that her son's marriage to Virginia was "rocky." She testified that she had spoken with S.P. many times and thought that S.P. was honest only "sometimes." She explained that in April 2002, she had invited S.P. on a class trip to San Antonio. According to appellant's mother, S.P. said she had enough money to pay for a blouse when in reality she did not. Another teacher paid for S.P.'s blouse, and appellant's mother had to reimburse her. Appellant's mother testified that she would not lie to protect her son. On cross-examination, appellant's mother acknowledged that S.P. had been eleven years old when the blouse incident occurred. She also admitted that she had no personal knowledge about what happened in her son's house when she was not there. Appellant testified in his own defense and repeatedly denied S.P.'s allegations. Appellant testified that he had believed that Virginia was single when he first met her and later learned that she was still married. He stated that during their marriage, he made money by trading stocks, selling items on eBay, and occasionally doing photography. Appellant characterized his relationship with S.P. as "pretty good" and stated that he had taught her how to play tennis and golf. He emphasized that while he had sat on the couch with S.P. on numerous occasions, he had never touched her inappropriately. He agreed that he occasionally disciplined S.P. for failing to do her chores but denied that he had ever hit S.P. or her mother. He claimed that S.P. voluntarily admitted that she had lied about having tennis practice one day when she actually went to a boy's house. Appellant explained that S.P. had her own bedroom and that she usually left for school before he had awakened in the morning. Appellant stated that Virginia typically left for work before appellant or any of the children had awakened. Appellant testified that when Virginia accused him of molesting S.P., he vehemently denied it and stated: "[Y]ou'll never get me to admit it because I didn't do it." When Virginia asserted that "[c]hildren don't lie," appellant replied: "Well, I'm sure there's some instances when they do." Appellant testified that in August or September of 2003, Virginia suddenly announced that she was going to divorce appellant but did not give a specific reason. According to appellant, Virginia frequently threatened to take away their son and not allow appellant to see him again. Appellant acknowledged telling his wife that he hated her in 2003, but he did not remember the argument's context. He testified that in April or May of 2004, when Virginia was taking the class about sex offenders, she said that she was amazed at "how easy it was for females to make allegations toward the male with no proof." Appellant stated that on May 9, 2004, the day he allegedly fondled S.P.'s breasts, the entire family had gone shopping for S.P.'s prom dress at Dillards, not at Kroger or Wal-Mart as S.P. claimed. He testified that S.P. was sitting in the back seat of the car with her brothers, and he denied touching her in any way. On cross-examination, appellant admitted that he had not been legally divorced from his first wife when he began dating Virginia, even though he previously had told the jury otherwise. Appellant admitted that the family had a lease on the house they had lived in, despite his father's and his own prior testimony to the contrary, although they did not have to pay rent. He testified that when Virginia confronted him about S.P.'s allegations, he said "I will never admit it" because he did not molest S.P. Appellant believed that the allegations were part of a "big conspiracy" by Virginia, although he could not explain why S.P. had talked with Windy Garcia before she confided in her mother if such a theory were true. He acknowledged that he had spanked the children but did not remember hitting S.P.'s brother so hard that he had marks on his legs for two days, as S.P. had told the nurse. Legal Sufficiency Analysis
In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). To convict appellant of indecency with a child, the jury needed to find beyond a reasonable doubt that appellant engaged in sexual contact with S.P. or caused S.P. to engage in sexual conduct. TEX. PEN. CODE ANN. § 21.11(a)(1) (Vernon 2003). Viewing the evidence in the light most favorable to the verdict, we find it to be legally sufficient to support appellant's conviction. Virginia testified that S.P. told her the allegations were true and had never wavered in her account. Virginia also insisted that she had not told S.P. to lie in order to gain custody of her youngest child. She stated that when she confronted appellant, she could tell he was lying by the look in his eyes. She denied ever telling appellant that it was easy to make false allegations of sexual abuse. Officer Garcia testified that both Virginia and S.P. had seemed genuinely upset the day after S.P. made the allegations. Dr. Lukefahr recounted that during her medical exam, S.P. had folded into a fetal position; he opined that she had been sexually assaulted. S.P. testified that she told Windy Garcia about the abuse two weeks before she told her mother and insisted that she did not fabricate the allegations. Garcia corroborated S.P.'s testimony and noted that S.P. seemed sad immediately before she spoke about the abuse. Viewing the evidence in the light most favorable to the verdict, we find that the jury could have found the essential elements of the offense beyond a reasonable doubt. Therefore, we find the evidence to be legally sufficient and overrule appellant's first point of error. Factual Sufficiency Analysis
In a factual sufficiency review, we must view all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence is factually insufficient if, when considered by itself, the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt and thus renders the conviction clearly wrong and manifestly unjust. Id.; Vasquez, 67 S.W.3d at 236. Alternatively, evidence is factually insufficient if the evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard cannot be met, even if evidence supporting guilt outweighs the evidence to the contrary. Zuniga, 144 S.W.3d at 484. The reviewing court may not substitute its own judgment for that of the jury and may not intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Vasquez, 67 S.W.3d at 236. We find the evidence to be factually sufficient to support appellant's conviction. Appellant denied molesting S.P. and testified that they had a good relationship. He believed that Virginia had told S.P. to fabricate the allegations in order to win custody of their son and asserted that after taking a class about sex offenders, Virginia had commented that it was easy to make false allegations of sexual abuse. However, appellant could not explain why S.P. had confided in Garcia before talking to her mother if Virginia had told S.P. to lie. Dr. Petzold could not state definitely that appellant did not molest S.P., even though he had an "adequate fund of accurate sexual information," unlike most sex offenders. Additionally, Dr. Petzold did not know the error rates for any of the psychological tests she administered to appellant, and she admitted that there is no "magic listing of indices" for sex offenders. Furthermore, appellant's parents acknowledged that appellant spent time alone with the children while Virginia was at work and they did not know what he did when alone with S.P. While statements that Virginia had been married when she began dating appellant and that S.P. had lied about having money to buy a blouse were intended to damage Virginia's and S.P.'s credibility, the jury apparently found S.P. and Virginia to be credible. See Vasquez, 67 S.W.3d at 236. The jury also was free to believe Officer Garcia's and Windy Garcia's testimony that S.P. seemed genuinely upset, as well as Dr. Lukefahr's opinion that S.P. had indeed been molested. See id. Viewing the evidence in a neutral light, we find it to be factually sufficient to support appellant's conviction. The supporting evidence is not so weak — nor is the contrary evidence so overwhelmingly strong — as to render the verdict clearly wrong and manifestly unjust. We overrule appellant's second point of error and affirm the trial court's judgment.