Grover Earl McDowell v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-101 CR ____________________

GROVER EARL McDOWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 04-01-00424-CR

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MEMORANDUM OPINION

A jury convicted appellant Grover Earl McDowell of indecency with a child. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). The trial court accepted the guilty verdict, found the enhancement paragraph to be true, and sentenced him to twenty years of confinement in the Texas Department of Criminal Justice Institutional Division. McDowell's sole issue on appeal challenges the legal and factual sufficiency of the evidence to support the verdict. We affirm.

Fourteen-year-old J.P. testified she first became acquainted with McDowell, her uncle, when she was eleven years old. Over the next few years, McDowell spent time with the family and stayed the night on weekends at their house in Porter, Texas. McDowell gave her money, let her drive his car, and bought her gifts such as alcohol, cigarettes, lighters, toys, and thong underwear.

J.P. testified that when she was twelve and thirteen, McDowell would touch her "private" and her "chest" with his hands. She testified that he would touch her over and under her clothes. According to J.P., McDowell touched her this way on many occasions at home and in the car, and once at the movies. State's Exhibit 3, a videotape of J.P.'s forensic interview, was admitted and played at trial. During the interview, J.P. discussed in detail McDowell's repeated sexual contact with her at her home, in the car, and at the movies.

J.P.'s mother and Detective Lisa Pickering with the Montgomery County Sheriff's Department testified for the State. J.P.'s mother testified McDowell would give J.P. more gifts and spend more time with J.P. than with her other children. She testified that J.P. was a "very happy child" before J.P. knew McDowell, but then J.P. became "distant a little bit," her grades dropped, and she began wanting to sleep in her sister's room.

McDowell asserts the evidence is legally and factually insufficient to support the verdict. Specifically, McDowell complains the State failed to prove the date of the offense alleged in the indictment through any of the witnesses. He argues neither Detective Pickering's nor J.P.'s mother's testimony incriminated him. He states there was no physical evidence or eyewitnesses presented, and no evidence that he confessed to the offense. He says "[t]he only evidence the State presented was a couple of vague sentences from [J.P.] that she was touched while she was asleep and that she felt something" and "she never clearly identified [him] as the perpetrator." McDowell also contends the State presented no evidence that any alleged touching of J.P. by him in the car or at the movies occurred in Montgomery County, Texas.

A legal sufficiency review requires the appellate court to view the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In reviewing the factual sufficiency of the evidence, an appellate court must determine whether, considering all the evidence in a neutral light, 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). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered alone, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after the court weighs the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. An appellate court "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence and will reverse the fact finder's determination only to arrest the occurrence of a manifest injustice." Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). It is the sole province of the jury to determine the credibility of witnesses and to weigh contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).   

The indictment stated the offense occurred "on or about November 01, 2000[.]" The "on or about" language of the indictment allows the State to prove a date other than the date alleged as long as the date is prior to the presentment of the indictment and within the statutory limitation period. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim App. 1997) (citing Scoggan v. State, 799 S.W.2d. 679, 680 n.3 (Tex. Crim. App. 1990)). "Where an indictment alleges that some relevant event transpired 'on or about' a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations." Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). J.P. testified her date of birth is January 23, 1990, and the sexual contact by McDowell started when she was twelve. She testified the touching ended when she was thirteen. Therefore, the alleged touching occurred in 2002 and 2003. The statute of limitations for indecency with a child by sexual contact is ten years from the victim's eighteenth birthday. See Tex. Code Crim. Proc. art. 12.01(5)(A) (Vernon Supp. 2005). The indictment was returned on January 20, 2004, and J.P. was only fourteen-years-old at the time of trial. The offense of indecency with a child, as proved, occurred before the presentment of the indictment and within the statutory limitation period.

McDowell argues Detective Pickering's and J.P.'s mother's testimony did not incriminate him. He states there was no physical evidence or eyewitnesses presented, and no evidence he confessed to the offense. J.P.'s mother's testimony was inculpatory in that her testimony corroborated J.P.'s testimony regarding McDowell's giving J.P. gifts and spending time alone with her. Detective Pickering testified there was no medical exam because there was no outcry of penetration in this case. J.P. testified her youngest sister told her she saw McDowell touch her inappropriately. Her sister did not testify at trial. The lack of physical or forensic evidence is a factor for the jury to consider in weighing the evidence. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd). McDowell further argues J.P. failed to identify him as the perpetrator of the sexual contact at J.P.'s home. McDowell says J.P. "did not sufficiently identify [McDowell] as the perpetrator of the offense in [J.P.]'s house because she testified that it happened when she was asleep." He contends the following exchange is insufficient to prove J.P. identified him as the perpetrator:

Q (Prosecutor): Okay. Tell the jury what would occur in your own room with Grover when you were age 12.

A (J.P.): Whenever I was asleep he comes in the room, and whenever I'm laying down he'd touch me and I'd move so he wouldn't do it. Then he'll try again, and if he can't get to me he'd leave.

Q: How do you know that Grover McDowell was touching you?

A: Because I felt it.

. . .

Q: How do you know that Grover McDowell was touching your private?

A: I felt him and I could feel things when I was sleeping.

On the videotape of J.P.'s forensic interview played for the jury, J.P. stated that McDowell touched her while she was sleeping, she woke up, and told McDowell to get out of her room. Throughout the trial and throughout the videotape, J.P. identified McDowell as the perpetrator of the sexual contact. J.P.'s statements during the forensic interview were consistent with her testimony at trial.

We do not reach the issue of venue regarding the sexual contact in the car and at the movies because the elements of the offense were proven as to the sexual contact at J.P.'s home. McDowell acknowledges the State has proven the house is in Montgomery County. Reviewing all the evidence in the light most favorable to the verdict in a legal sufficiency review, we conclude a rational trier of fact could have found beyond a reasonable doubt that McDowell was guilty of the offense charged. Based on a factual sufficiency review of the entire record, we conclude the jury was rationally justified in its verdict. McDowell's issue is overruled. The judgment is affirmed.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on March 28, 2006

Opinion Delivered June 14, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.