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concluding the same where the complainant was eighteen years old at the time of trial
Summary of this case from Banda v. StateOpinion
No. 05-02-00116-CR.
Opinion Issued January 14, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F98-32221-QN. AFFIRMED.
OPINION
John Damon Krupa appeals his aggravated sexual assault conviction. A jury convicted appellant, and the trial court sentenced him to thirty years' confinement. In two issues, appellant argues the evidence is factually insufficient to support his conviction, and the trial court erred in designating the outcry witness. We affirm the trial court's judgment. In 1995, the victim, L.D., lived with her mother and appellant. L.D. slept on a pallet on the floor, and L.D.'s mother and appellant slept on a fold-out sofa bed in the same room. One night when L.D.'s mother was out with friends, L.D. was in the kitchen cooking when appellant came up behind her, started rubbing on her, and put his finger inside her private part. Appellant took L.D. out of the kitchen and put her on the sofa. L.D. told appellant to stop, but he told L.D. to be quiet and pulled her overall shorts to the side and put his penis in her "bottom." At that time, L.D. had just turned twelve. L.D. did not tell her mother because appellant threatened to hurt her mother and grandmother if she told. Nevertheless, L.D. eventually told Linda Mercer, a school counselor, what had happened. Appellant was subsequently indicted and convicted of aggravated sexual assault, and this appeal followed. In his first issue, appellant argues the evidence is factually insufficient to support his conviction. When reviewing challenges to the factual sufficiency of the evidence, we apply well known standards. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The factfinder may believe or disbelieve all or any part of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A person commits the offense of aggravated sexual assault if he causes the penetration of the female sexual organ of a child by any means or causes the penetration of the mouth of a child by the sexual organ of the actor and the victim is younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2003). In this case, L.D. testified that, when she was twelve years old, appellant put his finger inside her private part. Appellant argues L.D., who was eighteen years old at the time she testified, was unable to recall specific details of the offense. Further, appellant points out, L.D. was in special education classes during her school years and she suffers from attention deficit disorder. However, the record contains L.D.'s testimony that appellant put his fingers inside her, that she meant inside her private parts, and she felt appellant's fingers go inside. L.D. testified she was twelve when the assault occurred. We conclude this evidence is factually sufficient to show appellant caused the penetration of L.D.'s sexual organ by his finger, and L.D. was twelve at the time. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2003); Johnson, 23 S.W.3d at 11. We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in designating Mercer as the outcry witness because the evidence showed Mercer was not the first adult to whom L.D. described the abuse. Specifically, appellant complains that L.D. first told Linda Young, a counselor who was treating L.D., of the abuse. Statements are not inadmissible as hearsay if they are made to the first person, eighteen years of age or older, to whom the child made a statement, and the statements are made by the child against whom an offense was allegedly committed. See Tex. Code Crim. Proc. Ann. art. 38.072 § 2 (Vernon Supp. Pamph. 2003). More than a general allusion of abuse is required, and the statement must provide sufficient detail to specify the offense alleged. See Garcia v. State, 792 S.W.2d 88, 90-92 (Tex.Crim. App. 1990); Foreman v. State, 995 S.W.2d 854, 858 (Tex.App.-Austin 1999, pet. ref'd). Here, L.D. testified she first told Young that she was molested when she was twelve, but she did not tell Young where the abuse occurred, the identity of the abuser, or what the abuser did. Although L.D. had trouble remembering exactly what she told Young, she testified that the statement she made to Mercer provided all the details about the assault — details she had not given Young. Under these circumstances, we conclude the trial court did not abuse its discretion in concluding Mercer was the proper outcry witness. See Foreman, 995 S.W.2d at 859. We overrule appellants' second point of error. We affirm the trial court's judgment.