Ronald Green v. State ( 2006 )

NO. 07-05-0113-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 30, 2006 ______________________________



RONALD R. GREEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 140^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-405,478; HON. JIM BOB DARNELL, PRESIDING _______________________________

Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Ronald R. Green appeals his conviction for aggravated sexual assault. He seeks to overturn it by contending that 1) the evidence is legally and factually insufficient to sustain it, 2) the trial court erred in refusing to grant his objection to the prosecutor's wearing of a religious cross on her person, and 3) the trial court erred in granting the State's motion to invoke the rule against his "parents." We affirm the judgment.

Issues 1 and 2 - Sufficiency of the Evidence

In his first two issues, appellant challenges the sufficiency of the evidence to sustain his conviction. In particular, he argues that it failed to show penetration of the vagina. We overrule the issues.

The standards by which we review the sufficiency of the evidence are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. Lexis 2040 (Tex. Crim. App. October 18, 2006), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) for an explanation of those standards.

Next, appellant was charged with intentionally and knowingly penetrating the female sexual organ of a five-year-old child with his finger. Penetration may be established through circumstantial evidence, Villalon v. State, 791 S.W.2d 130, 133-34 (Tex. Crim. App. 1990), and the slightest penetration is sufficient to uphold the conviction. Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974), quoting Nilsson v. State, 477 S.W.2d 592 (Tex. Crim. App. 1972). Penetration includes pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view even when one is naked. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Additionally, the sexual assault victim need not testify as to penetration. Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.-Houston [14^th Dist.] 2000, pet. ref'd).

While is it true that at trial, the child testified that appellant's finger was outside her "cookie," as she referred to her sexual organ, she also testified that it hurt "like a rock hit [her]" when appellant put his finger on her and that it burned and hurt afterward. Penetration of the vagina could cause burning, according to the sexual assault nurse who testified. Moreover, the victim told the sexual assault nurse that appellant put his "little finger inside [her] cookie." So too did the nurse discover two recent abrasions in the child's vagina that were consistent with digital penetration. This is some evidence, if believed, upon which a rational trier of fact could conclude, beyond reasonable doubt that penetration occurred. See Vernon v. State, supra (holding that the evidence was sufficient to establish penetration when the victim testified that Vernon touched the "[o]utside" of her vagina but nonetheless felt him pressing on it and felt pain and discomfort when he did press).

Admittedly, there was evidence of record that the victim's mother had examined the child's genitals after the child made her outcry, and the nurse testified it was possible the mother could have caused the abrasions. There was also testimony that the child had scratched or touched herself which could likewise have caused them, although the nurse testified it was unlikely. And, as for the failure of the emergency room physician to find sexual abuse, the evidence showed that he performed only a visual examination. Yet, the nurse examiner stated that she utilized a magnifying device to conduct her examination of the child. That the hymen was also intact, according to the physician, did not negate the presence of abrasions. Nor does it necessarily suggest that appellant did not touch, push aside, or reach beneath a natural fold of skin into an area of the body not usually exposed to view even when one is naked. Indeed, the thrust of his efforts is directed at disparaging the evidence of abrasion within the vagina. Yet, there need not be such abrasions for there to be penetration. Again, all that is necessary is slight penetration. Luna v. State, supra. Moreover, appellant cites us to no evidence suggesting that his hand was not in the vicinity of his victim's vagina or that he did not touch the organ in such a way to make the youth feel pain and burning once he stopped.

In short, the foregoing evidence simply raised issues of fact for the jury to resolve. Furthermore, that supporting the verdict was neither weak nor overwhelmed by contradictory evidence. So, the jury was free to believe the witnesses and evidence it cared to believe, and we cannot interfere with its prerogative given the state of the record. Thus, the verdict had the support of both legally and factually sufficient evidence.

Issue 3 - Display of Religious Symbol

In his third issue, appellant contends the trial court erred in overruling his objection to the prosecutor wearing a small cross around her neck during trial. That act, according to appellant, purportedly encouraged the jury to find him guilty as "a part of the acceptance of the religious philosophies adopted and displayed by the government." We overrule the issue.

The cross at issue was described as being one inch by one-half inch in size. Furthermore, the trial judge had not observed it prior to appellant raising the issue. Nor could the trial judge see it from a distance of eight feet once he was made aware of it. Thus, it was far from obvious or obtrusive.

Years ago, it was held that the United States Constitution does not require government to be hostile towards religion. See Zorach v. Clauson, 343 U.S. 306, 313-14, 72 S. Ct. 679, 684, 96 L. Ed. 954, 962 (1952). But, that is the effect of appellant's argument here.

Judges wear black robes and sit above those appearing before the court. Litigants and their counsel wear particular jewelry and clothing to symbolize their viewpoints or create certain impressions upon those observing them. Pictures of past judges and other elected officials, statues of notable personalities, engraved gavels, and the like also dot the walls and spaces of our many courtrooms. Simply put, our halls of justice are awash with symbolism. To cull and discard from those many symbols an unobtrusive item indicative of a person's belief in a life superior to that found within the confines of a courtroom would be nothing short of a hostile act towards religion. While the freedom to believe and evince one's beliefs may be wasting away in certain environments, we cannot say that the act complained of here warrants further erosion of personal religious liberty. See Draper v. Logan County Public Library, 403 F. Supp. 2d 608, 621 (W. D. Ky. 2003) (holding that a government employee's wearing of an unobtrusive religious symbol did not unduly entangle the state with religion); Nichol v. Arin Intermediate Unit 28, 268 F. Supp. 2d 536, 554 (W.D. Pa. 2003) (holding that a teacher's wearing of a small cross while teaching would not be perceived by her students as endorsing a Christian viewpoint given the other symbolic jewelry worn at school).

Issue 4 - Invocation of the Rule

Finally, appellant claims error on the part of the trial court in removing his "parents" from the courtroom upon the State's invocation of the Rule. That purportedly denied him his right to moral support. We overrule the issue.

The "parents" in question were appellant's mother, Ruth Corzine, and another woman named Caroline Edwards. Furthermore, his objection encompassed solely the presence of his mother. Thus, appellant waived any complaint he had regarding the exclusion of Edwards. As for Ms. Corzine, the prosecutor stated that she could be a potential rebuttal witness given that she was mentioned "in CPS reports" detailing extraneous acts of sexual abuse between appellant and his daughter. Furthermore, the State notified appellant of its potential use of that evidence at trial. So too had appellant's counsel alluded to (during his voir dire) Ms. Corzine as being a potential witness, though he later informed the court that she would not testify. Of note, however, is that while complaining that his mother would not testify, appellant did not represent that she lacked knowledge of pertinent facts related to his prosecution or the extraneous offenses encompassed by the reports. Given these circumstances, we cannot say that the trial court abused its discretion in excluding Ms. Corzine from the trial as a potential witness. See Peters v. State, 997 S.W.2d 377, 385 (Tex. App.-Beaumont 1999, no pet.) (holding that the trial court did not abuse its discretion in excluding the person from the courtroom since she was a potential witness). And, the opinion in Addy v. State, 849 S.W.2d 425 (Tex. App.-Houston [1^st Dist.] 1993, no pet.), upon which appellant relies, does not cause us to conclude otherwise.

Addy dealt with whether the exclusion of six black friends of Addy denied him his right to a public trial. Id. at 426. Appellant did not mention that ground as basis for his objection at bar, however. And, unlike the circumstances here, the prosecutor in Addy did not know who the six individuals she sought to exclude were. So too did she admit that she did not know if "they [were] pertinent witnesses." Id. at 427-28. In short, the record in Addy revealed that the individuals excluded were simply spectators. We have none of those indicia here.

Accordingly, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Publish.

ficient for purposes of § 101.101(c).

Actual Notice

The formal notice requirements of § 101.101(a) do not apply if the governmental unit has actual notice that death has occurred or that the claimant has received some injury. § 101.101(c). Actual notice to a governmental unit requires knowledge of (1) death, injury, or property damage; (2) the governmental units's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved. Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). Actual notice under this provision of the TTCA requires that the governmental unit have the knowledge or information that it would have had under the Act's notice provision and a subjective awareness that its alleged or possible fault could have produced or contributed to the death or claimed injury. Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004). Mere investigation of an incident does not provide a governmental unit with the requisite knowledge; however, absolute certainty is not required. See id. at 339.

The City had actual notice that a police cruiser was involved in a motor vehicle accident, involving a fatality, that occurred on December 7, 2002. Bosler's response to the City's motion for summary judgment further establishes that officers investigating the accident were told by an eye-witness, Nakeesha Turner, that immediately prior to the accident the officer was speeding and "appeared to be traveling at 60 to 65 mph" in a 45 mph zone. Regardless of whether this information was subjectively believed to be true, it can reasonably be assumed that such information, if pursued, would reveal the City's alleged or possible fault producing or contributing to the injury. The fact that the City conducted an extensive investigation, which they believe exonerated Riddle of any wrongdoing, is evidence itself that the City was on notice of its possible fault. The investigation in the underlying case is distinguishable from the investigation in Simons. In the Simons case the investigation gave no indication that the governmental unit was at fault; whereas, the investigation in this case revealed disputed allegations of fault. The City cannot simply ignore those facts indicating possible culpability for purposes of claiming lack of notice pursuant to § 101.101(c). Actual notice is a fact question precluding summary judgment, whenever the evidence is disputed. Simons, 140 S.W.3d at 348.

Because the City was aware of the death of Courtney and the injuries to Colton, they had actual notice of (1) the death or injuries, and (2) the identity of the parties involved. Furthermore, because the City was aware of the governmental unit's alleged or possible fault producing or contributing to the death or injury, they had actual notice for purposes of § 101.101(c). See Cathey, 900 S.W.2d at 340.

Conclusion

We find that the City of Lubbock received formal written notice of Bosler's claims pursuant to § 101.101(a), and imputed actual notice pursuant to § 101.101(c). The trial court erred by granting the City's Motion for Summary Judgment based upon a lack of notice.

Accordingly, that portion of the trial court's summary judgment as to the City of Lubbock is reversed and the cause is remanded for further proceedings; in all other respects the judgment is affirmed.

Patrick A. Pirtle

Justice

1. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (Vernon Supp. 2006). All section references herein are references to the Texas Tort Claims Act.