Jeff Pickrell v. State of Texas ( 2002 )

NO. 12-01-00138-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JEFF PICKRELL,

§ APPEAL FROM THE 241ST

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

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PER CURIAM

Jeff Pickrell ("Appellant") appeals his conviction for indecency with a child. Appellant raises one issue on appeal. We affirm.

Background  

W.K., who was, at the time, ten years old, went camping with his friend Matthew Toole ("Toole"), Appellant, who was Toole's stepfather, Appellant's wife, Tamara Pickrell, and Xavier Land, who was Toole's cousin and Appellant's stepson (collectively "the group"). The group arrived at the campsite during the afternoon. After unloading the car, the group and some friends engaged in typical activities associated with camping. The group's friends stayed at the campsight until nearly midnight. After the friends left, W.K. and Toole decided to stay up to look for shooting stars. Appellant, who had been drinking that evening, told the two boys to lie on the ground next to him, hold hands, and watch the sky. While he lay on the ground next to W.K., Appellant repeatedly attempted to place his hand on W.K.'s groin, but was continually rebuffed by W.K. Attempting to distance themselves from Appellant, W.K. and Toole walked down to the water and fished for a while. However, Appellant soon came down to the water's edge. Once there, Appellant dropped to his hands and knees and told W.K. to come over to him, bend over, pull off his pants and that Appellant would engage in sexual intercourse with W.K. and show him how it was done. This entire scenario occurred in the presence of Appellant's stepson, Toole. The two boys left Appellant and returned to the campsite where they spent approximately forty-five minutes avoiding Appellant as he followed them in circles around the campsite.

The boys went inside the tent where Appellant's wife was asleep and attempted to wake her. She called Appellant into the tent and the boys went back outside and sat on a bench. Shortly thereafter, Appellant reemerged from the tent. The boys returned to the tent and woke Appellant's wife, who again called her husband back into the tent. Toole remained in the tent with his mother and Appellant, while W.K. left the tent and lay down on a nearby cot. Appellant soon reemerged from the tent and pulled a cooler over to W.K.'s cot. As W.K. lay on the cot, Appellant placed his hand beneath the covers, but on top of W.K.'s clothes, and groped W.K.'s penis. As he did so, Appellant made vulgar comments to W.K. W.K. again rebuffed Appellant. Angered, Appellant shook a gas can over the fire and over the tent, but no gasoline was spilled. W.K. stayed awake for the remainder of the night to keep away from Appellant.

Factual Sufficiency  

In his sole issue, Appellant contends that the evidence is factually insufficient to support the jury's verdict. We first assume that the evidence is legally sufficient under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979). See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. Id. We review the evidence weighed by the jury which tends to prove the existence of the fact in dispute, and compare it to the evidence which tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We may disagree with the jury's determination, even if probative evidence exists which supports the verdict. See Clewis, 922 S.W.2d at 133. However, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.- El Paso 1996, pet. ref'd). We will reverse only when the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134.

Appellant suggests that there are inconsistencies in the testimony offered by W.K. as compared to testimony offered by other witnesses. Appellant also argues that W.K. had not testified that Appellant touched his penis until the prosecutor suggested such facts in a question posed to W.K. We note that Appellant lodged no objection to the prosecutor's question. The only inconsistencies in testimony specified by Appellant in his brief relate to testimony offered by his former wife, Tamara Pickrell, who was inside the tent on the night in question. Appellant points out that Tamara Pickrell testified that Appellant did not fall in the fire; that he did not cut a hole in the tent; that he did not try to pour gasoline on the tent and set it afire; and that she did not hit Appellant in the head with a lantern. We iterate that our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164 (emphasis added). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt, 932 S.W.2d at 96. Our review of the record does not reveal any evidence causing us to conclude that the verdict is so against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, nor does the verdict otherwise shock the conscience of this court. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. Appellant's sole issue is overruled.

Accordingly, the trial court's judgment is affirmed.

Opinion delivered April 25, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)















COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

APRIL 25, 2002

NO. 12-01-00138-CR

JEFF PICKRELL, Appellant V. THE STATE OF TEXAS, Appellee

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Appeal from the 241st Judicial District Court of Smith County, Texas. (Tr.Ct.No. 241-80862-97)

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THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.  

THE STATE OF TEXAS M A N D A T E

TO THE 241ST JUDICIAL DISTRICT COURT OF SMITH COUNTY, GREETINGS:

Before our Court of Appeals for the 12^th Court of Appeals District of Texas, on the 25th day of April, 2002, the cause upon appeal to revise or reverse your judgment between

JEFF PICKRELL, Appellant

NO. 12-01-00138-CR and Tr. Ct. Case Number 241-80862-97

Opinion by Per Curiam.

THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that this decision be certified to the court below for observance.

WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE LEONARD DAVIS, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.

CATHY S. LUSK, CLERK

By:_______________________________

Deputy Clerk