Opinion
Nos. 05-03-00456-CR, 05-03-00457-CR.
Opinion Filed May 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-31681-T and F02-31682-T. Affirm.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION
James Arthur Vaughn was convicted of the aggravated sexual assault of his six-year-old granddaughter, and his punishment was set at fifteen years' confinement. Vaughn was also convicted of the aggravated sexual assault of his four-year-old grandson; in that cause, his punishment was set at ten years' confinement, and the sentence was probated. Vaughn has appealed both convictions as well as the cumulation of his sentences. For the reasons discussed below, we affirm the judgments of the trial court.
This proceeding was numbered F02-31681-T in the trial court and is numbered 05-03-00456-CR in this Court.
This proceeding was numbered F02-31682-T in the trial court and is numbered 05-03-00457-CR in this Court.
Factual Sufficiency
Vaughn first challenges both convictions on the ground of factual sufficiency. Specifically, Vaughn argues the evidence of the element of identity is factually insufficient to support the verdict. When conducting a factual sufficiency review on an issue, we review 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, No. 539-02, 2004 WL 840227 (Tex.Crim.App. Apr. 21, 2004). When there is evidence both supporting the verdict and contrary to the verdict, we weigh all the evidence and determine whether the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Resolution of conflicts in the evidence and credibility of witnesses lies within the factfinder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.-Dallas 1999, no pet.). The indictments in the two cases charged the same conduct: that appellant did "intentionally and knowingly cause the sexual organ of [the child] . . . to contact and penetrate the mouth of the defendant." Each of the child-complainants testified at trial and related, in the complainant's own words, that appellant had caused his mouth to come into contact with and penetrate the complainant's sexual organ. Each of the complainants also testified, again in the complainant's own words, to having seen appellant engage in the charged contact with the other complainant. In addition, a brother of the two complainants testified to having seen appellant touch his mouth to each complainant's sexual organ. Finally, the outcry witness for each of the complainants testified to the complainants' reports of the charged abuse by their grandfather. There was evidence contrary to the verdict: appellant testified and denied that he had engaged in any sexual touching of his grandchildren. Appellant argues that — given the young ages of the children and his own denial — the evidence indicates "the jury's verdict was clearly wrong." We disagree. The testimony of a child victim is sufficient evidence to support a conviction for aggravated sexual assault. See Empty v. State, 972 S.W.2d 194, 196 (Tex. App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.). And in this instance, the jury could have believed the complainants and disbelieved appellant. See Obigbo, 6 S.W.3d at 305 (issues of credibility are for the jury). Having reviewed all the evidence in a neutral light, we conclude the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. Zuniga, 2004 WL 840227. The evidence of identity is factually sufficient to support the jury's verdict. We overrule appellant's first point of error in both appeals.Denial of Mistrial
In the appeal from cause F02-31682-T, the case in which appellant's grandson was the complainant, appellant raises a distinct point of error. He argues that the trial court erroneously denied his motion for a mistrial "after the jury declared itself deadlocked." The record establishes that the jury was charged and began to deliberate on March 3, 2003. The parties appear to agree that the first-day deliberations lasted for approximately four hours. During that afternoon's deliberations, the jury sent out a series of questions concerning evidence and testimony. The jurors returned to deliberate the morning of March 4, 2003. Again they sent out notes concerning disputes about testimony. Late in the morning the jurors sent out a note, signed by the presiding juror, that stated "We are currently deadlocked at 8-4 Not Guilty on Cause No. F02-31682-T." The trial court responded with a message that said, "You are recessed for lunch at this time until 1:00 p.m., at which time you will continue your deliberations." Both parties said they had no objection to the response. Shortly after they returned from lunch, jurors sent another note to the judge stating "After further deliberations, we are still deadlocked." The court advised counsel she had prepared an Allen charge in response to the jury's note. Counsel for Vaughn initially stated she had no objection, then stated that — given the fact that the jury had deliberated for more than six hours — she was requesting the court "declare a mistrial in the case as a result of the hung jury." The trial court overruled the motion, brought the jury into the courtroom, and read the Allen charge. Both briefs agree that the jury returned its unanimous verdict against Vaughn less than an hour after being given the Allen charge. Vaughn does not challenge the substance of the charge itself. Instead he argues that the trial court abused its discretion in denying the motion for mistrial because, in his view, "the evidence indicated the jury was unlikely to agree upon a verdict." The trial court may, in its discretion, discharge the jury when the jury has deliberated long enough that it becomes "altogether improbable that it can agree." Tex. Code Crim. Proc. art. 36.31 (Vernon 1981). There is no set time limit on the length of a jury's deliberations. Green v. State, 840 S.W.2d 394, 406-07 (Tex.Crim.App. 1992). Both parties cite the rule that the exercise of discretion in declaring a mistrial is governed by the amount of time the jury deliberates, considered in light of the nature of the case and the evidence. Patterson v. State, 598 S.W.2d 265, 268 (Tex.Crim.App. 1980); Beeman v. State, 533 S.W.2d 799, 800 (Tex.Crim.App. 1976). In this case, the jury deliberated for approximately seven hours before Vaughn moved for a mistrial. Jurors were required to deliberate on two very serious cases. The defendant was charged with the aggravated sexual assault of his two very young grandchildren, and the defendant flatly denied that the conduct charged had occurred. Jurors had heard testimony from the two young complainants as well as siblings, outcry witnesses, and experts. The evidentiary portion of the trial itself had lasted three days. Moreover these jurors communicated frequently with the trial court, indicating their desire to review and sort out disagreements concerning the evidence. Considering all these factors, we conclude the trial court did not abuse its discretion in instructing the jury to continue its deliberations rather than granting Vaughn's motion for mistrial. We overrule Vaughn's second point of error in his appeal from cause F02-31682-T.Cumulation of the Sentences
In his final point of error, appellant requests reformation of the judgment in cause F02-31682-T to allow his two sentences to run concurrently. After the jury returned its verdicts in the punishment phase of the trial, the State asked the court to cumulate the sentences; following a hearing, the trial court orally granted the motion. The court then included its cumulation directive in the judgment in cause F02-31682-T. Where the judgment requires an entry for the date the period of supervision is to commence, the trial court added the following notation:PUNISHMENT SHALL COMMENCE WHEN THE 15 YEAR SENTENCE IN CAUSE # F02-31681 ENDS.And below his signature at the end of the judgment, the trial court entered the following:
Said judgment, sentence, and term of punishment in the cause shall commence and run when the sentence in Cause No. F02-31681, a previous conviction of the defendant for the offense of Agg Sex Assault in the 283rd Judicial District Court of Dallas County, Texas was served and was caused to operate. The sentence in said prior cause was imposed on March 5, 2003, and was for a term of confinement in the Inst. Div. Of Texas Dept. of Crim. Justice for 15yrs.Appellant argues these notations within the judgment are ineffective because the trial court did not enter a separate written order including the cumulation directives. We disagree. The requirement of a writing — as appellant concedes — is to assure the judgment is "sufficient on its face to effect its purpose without resort to evidence outside its face." The judgment, appellant avers, must "convey to prison officials clear and unequivocal orders of the trial court so that they can accurately determine the length of incarceration." We conclude the trial court's judgment in this cause complies with both of these requirements. Prison officials can determine the length of the incarceration and when it is to begin from the face of the judgment; they need not resort to any evidence outside that judgment. We will not require the trial court to create a separate written order, the terms of which must be repeated within the judgment itself. We overrule appellant's final point of error in both appeals. We affirm both judgments of the trial court.