Nos. 05-04-01846-CR, 05-04-01847-CR
Opinion Filed March 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-35664-Qu and F03-35667-QU. Affirmed.
Before Justices RICHTER, LANG, and MAZZANT.
Opinion By Justice RICHTER.
Victor Winston Thompson appeals his jury convictions for the aggravated sexual assault (appellate cause number 05-04-01846-CR) and sexual assault (appellate cause number 05-04-01847-CR) of his daughter J.T. In five issues, he challenges the legal and factual sufficiency of the evidence to support the convictions and the admission of a portion of the testimony of J.T.'s counselor. We affirm.
Background
Thompson was charged with the two offenses after J.T. disclosed to her sister and Irving police officer James Sears that Thompson had been molesting her and forcing her to perform oral sex on him since she was about nine years old. Specifically, Thompson was charged with committing the aggravated sexual assault by penetrating J.T.'s sexual organ with his finger, and was charged with committing the sexual assault by penetrating J.T.'s mouth with his sexual organ. At the time of trial J.T. was seventeen. She testified that in addition to her sister, who was fifteen years older, she had a brother who was a year older. According to J.T., her home life was chaotic. Both Thompson and her mother were drug addicts and her mother was also a prostitute. The family moved several times, moving from Boley, Oklahoma where they had lived for five years to Denver, Colorado where they lived for about two years, back to Boley for an additional four years, and then to Irving for about one year. While living in Boley the "first time," J.T. was molested by her paternal grandfather and the police conducted an investigation after she reported the incident to her mother. While living in Denver, she and her brother were temporarily placed in foster care. Although Thompson worked, the family had very little and was often homeless. According to J.T., Thompson was "very religious" and strict. J.T. testified "the first contact [with Thompson] was oral sex." J.T. explained she had gotten in trouble for not being "devoted to God" and her "punishment" was to perform oral sex on Thompson. Thompson was nude, he had her remove her clothes, and "instructed" her how to perform the act. The family was living in Boley at the time and the incident occurred at home. J.T. testified that Thompson had her perform oral sex on him "eleven to fifteen times" over the next four years in each of the cities they lived, often for punishment and often "just because." In addition, as she got older, Thompson began touching her inappropriately, and then began penetrating her with his finger. The penetration first occurred when they were living either in Denver or Boley "the second time" and continued when they moved to Irving. While in Irving, Thompson also "had sex with [her]." J.T. described in detail each of the acts in which they engaged and testified that Thompson always ejaculated either on her stomach or the bed. J.T. testified that she was afraid of Thompson and because of that did not disclose the abuse until she was thirteen and living with her brother and sister in Oklahoma City. J.T. explained she and her brother "moved in" with the sister after the family was evicted from their apartment in Irving. Although the move was intended to be temporary, J.T. and her brother chose to remain with the sister, who obtained "legal custody" of the two. J.T. testified she "generally" disclosed the abuse to her sister after listening to her sister and an aunt discuss over the telephone their suspicions that Thompson had molested J.T. Although J.T. initially requested her sister not to "do anything about it," the sister contacted the police. According to J.T., she never spoke to law enforcement officials in Oklahoma and no charges were filed there, but eventually, after speaking with Officer Sears, charges were filed in Irving against Thompson. J.T. testified that she received counseling in Oklahoma City and that while she did not approve of Thompson's actions and did not want to live with him because of the abuse, she nonetheless loved him. J.T.'s testimony was corroborated in large part by her brother, who witnessed some of the sexual acts, but did not intervene out of fear, and was also consistent with what her counselor Teena Collins testified J.T. had told her. J.T.'s sister testified J.T. told her only in general terms what Thompson had done. Although J.T. had asked her not to report the abuse, she contacted the Oklahoma City police. An investigation was conducted and it was through the interviews with the police and the Oklahoma Children's Protective Services (CPS) workers that she learned the details of the abuse. Despite the repeated incidents of abuse, neither the police nor CPS took any legal action apparently because J.T. was no longer living with Thompson and Thompson was not living in Oklahoma. The sister's testimony concerning the abuse was consistent with J.T.'s testimony. Sears testified he became involved in the case after the sister contacted him. He interviewed J.T. who told him in detail of the abuse and stated the abuse occurred three to five times a month over the period of about four years. J.T. also told him that Thompson did ejaculate in her mouth once. The interview was videotaped and the videotape was admitted into evidence and played for the jury. Testifying in his defense, Thompson denied the allegations. Thompson's brother also testified and stated Thompson had denied the allegations to him. Sufficiency of the Evidence
In his first four issues, Thompson challenges the legal and factual sufficiency of the evidence to support the convictions. We review challenges to the legal and factual sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to 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). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In both sufficiency reviews, we must be appropriately deferential to the fact-finder's role as the exclusive judge of the witnesses' credibility and the weight given to the evidence. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To obtain a conviction in the aggravated sexual assault case, the State had to prove Thompson intentionally and knowingly digitally penetrated the sexual organ of J.T., a child, "the first time it occurred, said incident occurring when J.T. resided in Irving, Texas." Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), 2(B) (Vernon Supp. 2005). To obtain a conviction in the sexual assault case, the State had to prove Thompson intentionally and knowingly penetrated J.T.'s mouth with his sexual organ. Id. § 22.011(a)(2)(B). At Thompson's request and because J.T. testified Thompson forced her to perform oral sex numerous times over a four year period, the State elected to proceed on the incident where Thompson ejaculated in J.T.'s mouth as the act upon which it would rely for the sexual assault conviction. See O'Neal v. State, 746 S.W.2d 769, 771-72 (Tex.Crim.App. 1988) (in sexual assault case where one sexual act is alleged in indictment but evidence shows more than one act, once State rests its case in chief and upon defendant's timely request, State must elect act upon which it will rely for conviction); Phillips v. State, 130 S.W.3d. 343, 349 (Tex.App.-Houston [14th Dist.] 2004, State's pet. granted; appellant's pet. ref'd) (op. on reh'g). Thompson's first two challenges to the legal and factual sufficiency of the evidence concern the aggravated sexual assault conviction. In arguing the evidence is legally and factually insufficient to support this conviction, Thompson first contends that no evidence exists showing the offense occurred in Texas. Thompson bases this argument on his interpretation of the phrase "the first time [the penetration] occurred, said incident occurring . . in Irving, Texas." Thompson maintains this phrase required the State to prove that the "very first" penetration occurred in Texas. Because J.T. testified that the first time Thompson penetrated her sexual organ with his finger was when they lived either in Denver, Colorado or Boley, Oklahoma, Thompson maintains the trial court could not have jurisdiction over the offense and thus he should have been acquitted. Of course, in general terms, a Texas trial court does not have jurisdiction over an offense unless the conduct or result that is an element of the offense occurs in Texas. See Tex. Pen. Code Ann. § 1.04 (Vernon Supp. 2005). However, as the State responds, the phrase at issue only required proof of the first penetration that occurred in Texas. The State proved this through J.T.'s testimony and her testimony alone was sufficient to support the conviction. Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). We resolve Thompson's first contention against him. Thompson's second challenge to the sufficiency of the evidence to support the aggravated sexual assault conviction stems from J.T.'s delayed outcry and "inconsistencies" in the testimony. Specifically, Thompson notes that J.T. "immediately" informed her mother when her grandfather molested her, yet did not disclose the abuse by Thompson when that allegation was investigated nor while in foster care in Denver. J.T. waited four years to disclose the abuse and only disclosed it after hearing the sister and an aunt discuss their suspicions that Thompson had molested her. Thompson also notes J.T. denied speaking with Oklahoma officials concerning the abuse, yet the sister testified that Oklahoma officials investigated the allegations. Finally, Thompson notes J.T. told Sears that the abuse occurred three to five times a month, yet testified at trial that it occurred three to five times in each city they lived. Thompson maintains the inconsistencies and delayed outcry show that J.T. fabricated the allegations because she did not want to live in a "strict" and chaotic home. Thompson's contentions, however, are all credibility issues which were for the jury to resolve. By returning a verdict of guilty, the jury necessarily resolved these credibility issues in the State's favor and we will not disturb that finding. Harvey, 135 S.W.3d at 717; Empty, 972 S.W.2d at 196-97. From J.T.'s detailed testimony about the abuse and her testimony that the digital penetration occurred in Irving, we conclude a rational jury could have found beyond a reasonable doubt that Thompson committed aggravated sexual assault against J.T. Although Thompson denied the allegations, we further conclude this contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. We resolve Thompson's second issue against him. Thompson's last two challenges to the legal and factual sufficiency of the evidence concern the sexual assault conviction. In these two issues, Thompson maintains that because J.T. testified at trial that Thompson never ejaculated in her mouth the conviction, based specifically upon the incident where Thompson ejaculated in J.T.'s mouth, cannot stand. As the State points out, however, all it had to prove was that Thompson penetrated J.T.'s mouth with his sexual organ, not that he ejaculated in her mouth. See Tex. Pen. Code Ann. § 22.011(a)(2)(B). Again, the State satisfied its burden through J.T.'s testimony that Thompson forced her to perform oral sex on him. Empty, 972 S.W.2d at 196-97. Even assuming, though, that the State had to prove Thompson ejaculated in J.T.'s mouth, the jury was free to believe J.T's videotaped statement to Sears that Thompson did ejaculate in her mouth and free to disregard her testimony to the contrary. Id. Given the record before us, we conclude the evidence was both legally and factually sufficient to support the sexual assault conviction. We resolve Thompson's contentions to the contrary against him. Admission of Counselor's Testimony
In his fifth issue, Thompson complains about the admission, over his objection, of the testimony of J.T.'s counselor Teena Collins. Specifically, he complains of her testifying about what J.T. told her Thompson had done to her. Thompson maintains Collins's testimony was inadmissible hearsay and its admission was "clearly harmful" and "had a substantial and injurious effect in determining the jury's verdict." We need not determine whether the admission of Collins's testimony was error because we conclude any error was harmless. The complained-of portion of Collins's testimony was similar to the testimony of J.T. as well as the sister's testimony, which was admitted without objection. When, as here, the same allegedly erroneously-admitted evidence is admitted elsewhere at trial without objection no reversible error occurs. Josey v. State, 97 S.W.3d 687, 698 (Tex.App.-Texarkana 2003, no pet.); Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). We resolve Thompson's fifth issue against him. We affirm the trial court's judgments.